This American Life Misses a Chance to Promote the Public Domain

Marcus Banks
Nov 21, 2017 · 3 min read

Over the weekend I heard a fascinating piece on This American Life about the case of photographer David Slater and the macaque monkey Neruto. Slater was working in Indonesia in 2011, and had set up cameras for one of his photo shoots. Neruto pressed the button on one of the cameras, taking what became famous as a set of “monkey selfies.” It was Slater’s equipment and expertise that spurred the shoot in the first place. But Neruto had enough cognition to understand to look at the camera, and sufficient motor skills to press the button.

So who owns the copyright to these photos— the man or the monkey? Whose property are they, in the final analysis?

Wikipedia claims the photos are in the public domain, due to having an animal author to whom no copyright can be assigned. This is why at least one such image remains on Wikipedia today. Slater claims this is preposterous, and that of course he owns the rightful copyright. The People for the Ethical Treatment of Animals (PETA), in a long-running lawsuit that was recently resolved, asserted that in fact Neruto has the copyright — not Slater, and not the broader public either. This is part of a broader effort by PETA to grant equal status to animals in all respects.

The radio piece captured this story with nuance and humor. My sympathies are with Slater. If he had not traveled to Indonesia and supplied the cameras that Neruto used, we would not have monkey selfies in the first place. We can grant that animals deserve respect and affection without according them a level of agency they do not possess. And given that Slater had intended to sell the photograph, Wikipedia’s public domain argument also falls flat.

My main concern with This American Life’s approach is that narrator Dana Chivvis never takes the time to describe the purpose of the public domain. She clearly sympathizes with Slater in his dispute with Wikipedia, going into some detail about how Wikipedians have been cruel and dismissive of Slater’s perspective. While I agree with Slater and Chivvis on this specific case, the impression they leave is that the public domain is always a preposterous concept. This is unfortunate, because society depends on pure and unfettered access to a common stock of references and art.

If the direct biological descendants of Shakespeare were able to monetize every potential derivative work of Hamlet, most of those works would never be made. The public domain is the seed-bed of our culture, as Jonathan Lethem argued in his brilliant 2007 essay “The Ecstasy of Influence.”

Of course, artists like Slater are not working for free. Copyright is the inducement to do artistic labor, for compensation, that would otherwise go undone. But, crucially, copyright is only supposed to vest “for a limited time.” After that time, works enter the public domain and others can draw upon them freely for their own new creations.

“Limited time” is a vague formulation — one person’s “an appropriately limited time” is another person’s “way too short a timeframe for my way of thinking.” The point here is not to adjudicate the optimal length of copyright. It is simply to observe that on the other side of copyright protection lies the public domain. Individual artists need copyright in order to make a living. Societies need the public domain in order to make art.

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