Even though the U.S. Copyright Office has explicitly stated that one can not register a copyright for “A photograph taken by a monkey,” the photographer whose camera was used by a monkey for a now-famous self-portrait is still trying to claim that he is the owner of the photograph and demanding that a website purchase a license to run the image.

For those coming late to this story, here’s a quick catch-up. In 2011, wildlife photographer David Slater traveled to Indonesia and was taking photos of some macaque monkeys, when one of the animals snatched his camera away and took some photos, including the above self-portrait.

According to U.S. copyright law, a non-human animal can not hold copyright on any work. So when the selfie was added to the Wikimedia Commons collection of 22 million images and videos that are free to use, Slater made various attempts to have it removed, claiming he was the rightful copyright holder.

In August a Wikimedia transparency report explained that the organization’s stance was that neither Slater nor the monkey held the copyright, and was thus in the public domain. Weeks later, the U.S. Copyright Office issued a draft of its Compendium of U.S. Copyright Office Practices and specifically called out photos taken by monkeys as an example of something that can’t be registered.

Things seemed to settle down, until last week, when Slater wrote a letter to advocacy group Public Knowledge, alleging that its blog had infringed on his copyright.

Slater took issue with an August blog post from Public Knowledge’s Sherwin Siy on the topic of the monkey selfie. He alleged the article was “factually incorrect and damaging,” and “willfully damaging and disrespectful” and that the post “encourages the public to infringe my copyright of the monkey images.”

“The exclusion of any proper accreditation to the image, or even mention of my name in relation to the image, infringes upon my moral rights to the image and is contrary to any Fair Use dealing,” he writes. “It is also being used to benefit Public Knowledge and your mission at the expense of my own. This is contrary to fair use and also your mission which claims to uphold the fair use doctrine.”

Slater then goes on to explain his unique understanding of how public domain works.

“A public domain image is one in which a living author has voluntarily relinquished rights to the image,” claims Slater. “Any debate claiming acts of nature were responsible for the image MUST be resolved in a court, and only AFTER judgement shall an image be qualified as public domain.”

In Siy’s response to Slater — which makes it clear that Public Knowledge has no plan to obtain a license for the photo or to rewrite its story — he takes particular issue with this assertion that a public domain claim must be litigated.

“It would be absurd for every instance of the use of public domain works to be litigated,” writes Siy. “The fact that certain works have no copyright holder (because the term of copyright has expired, because the work is not the creation of a human author, or because the work was not sufficiently fixed or sufficiently creative) means that there would be no one to definitively contest the usage in court.”

He points out that publishers don’t need to go to court for permission to print copies of 173-year-old Edgar Allan Poe stories, or that anyone needs a judge to sign off on the use of creative works authored by the federal government.

Siy does acknowledge that someone like Slater could go to court to try to prove that the disputed work is not in the public domain.

Even if Slater did hold the copyright to the image, Siy notes that the doctrine of fair use allows for certain unlicensed uses of copyrighted works.

“You will note that our use of the photograph was in the context of discussing that photograph,” he explains. “News reporting, commentary, and criticism are all quintessential examples of fair use, and this clearly falls within them.”

Siy also slams Slater for his repeated statements that using the photo benefits the mission of Public Knowledge.

“If uses of copyrighted works were only fair when they were useless to the user, it would be a singularly useless doctrine,” explains Siy.

Finally, the response to Slater argues that the original Public Knowledge blog post was not “disrespectful” to Slater, and it wouldn’t matter if it were.

“While I believe I was more than fair in my treatment of your reputation in that post, I did then, and do now, have every right in the world to be disrespectful of you in public,” concludes Siy.

[via Ars Technica]

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