The monkey is a non-economic actor. She does not even need to be included in the equation.
The photographer was the sole driving force in bringing the image to the human marketplace. He is the last link in the chain that is even capable of exercising ownership over the image. His equipment was at risk while in macaque hands. His judgement culled the hundreds of unfocused, uncomposed, or otherwise useless images. He probably did post-production work on the photo to make the colors look right in varying presentation media.
There is just no way--if you believe in copyright at all, that is--that the copyright on the photo is not 100% vested in David Slater. If he had any reason to believe he could not personally profit from putting additional work into macaque selfies and publishing them to a human audience, every last one would be deleted, to make room on the card for something that might pay the rent.
Besides that, unilaterally declaring it to be public domain just doesn't satisfy the "don't be a dick" rule.
Here's a hypothetical. Slater, instead of rigging the shutter button to take still photos, sets it up to start a video recording on the first press, then to apply a frame marker to the video for every subsequent press. Before allowing the macaque to take the camera, he starts the video recording. Upon retrieving the recording, he then deletes all frames that would not be usable as a still photo. By the "shutter button" standard, he owns the copyright.
If rephrasing the technical aspects of the creation scenario results in different copyrights, your criterion is too flimsy to be used as a copyright guideline. Clearly, the "shutter button" standard is bullshit, especially given that any monkey can push a button.
My criterion is that the market would never have had access to the image at all, were it not for Slater bringing it forth as trade goods. Therefore, I name him owner of the original photo, and from that, allow him the right to enforce exclusivity and license any copies, as permitted by established copyright law.
The monkey, being non-human, and a non-participant in human markets, is not competent to hold ownership over anything. It has no specific rights to its own likeness, or to any of its own creations. Original ownership of property derives from the act of making something available for trade, even if no price is specified, and in respecting the trade offers of others. Wikimedia Foundation really needs to rein in its own troop of button-pushing yard-apes before lawyers get involved.
"The market" is not a criterion for copyright; in fact it has nothing to do with copyright at all. Some things are marketable and cannot be copyrighted, some things can be copyrighted and are not marketable at all
The photographer did not set out to get monkeys to push the trigger on the camera; the final situation that set in motion the creation of the work was not put forth by himself and is a complete accident.
There was a case of a bird stealing a camera and flying with it; it was considered to be in the public domain. It's unlikely that a ruling on this would show anything different.
Marketability is not at issue. That just means that no one wants to own something more than the person that already has it. It is entirely possible to own something that literally no one else in the universe wants. There is no marketability, but there is still ownership. There is always the possibility that someone might change preferences and offer a trade.
The photographer did not push the image capture button. But the macaque didn't accidentally post-process the best images and sell them for publication, either. The human did all the work necessary to make the image valuable to other humans.
If the macaque painted a masterwork with oils on canvas, and left it in the jungle, the human that finds it owns it, and the copyright for it. In the same vein, the person who finds a piece of driftwood with an uncanny resemblance to Cthulhu owns it. It does not matter if it was constructed or found. The value lies in separating what is appealing to other humans from what is not.
Suppose that J.D. Salinger wrote a book and kept it locked in a vault, with orders that it be burned on his death. A thief sneaks in, cracks the lock, copies the manuscript, and publishes it under his own name. He owns the copyright. I guess J.D. should have shared his creation with other humans by publishing. Like patent, the monopoly privilege of copyright is predicated on bringing the product to the marketplace, even if no one wants to buy or no one can raise the sale price.
The photographer was the sole driving force in bringing the image to the human marketplace. He is the last link in the chain that is even capable of exercising ownership over the image. His equipment was at risk while in macaque hands. His judgement culled the hundreds of unfocused, uncomposed, or otherwise useless images. He probably did post-production work on the photo to make the colors look right in varying presentation media.
There is just no way--if you believe in copyright at all, that is--that the copyright on the photo is not 100% vested in David Slater. If he had any reason to believe he could not personally profit from putting additional work into macaque selfies and publishing them to a human audience, every last one would be deleted, to make room on the card for something that might pay the rent.
Besides that, unilaterally declaring it to be public domain just doesn't satisfy the "don't be a dick" rule.
Here's a hypothetical. Slater, instead of rigging the shutter button to take still photos, sets it up to start a video recording on the first press, then to apply a frame marker to the video for every subsequent press. Before allowing the macaque to take the camera, he starts the video recording. Upon retrieving the recording, he then deletes all frames that would not be usable as a still photo. By the "shutter button" standard, he owns the copyright.
If rephrasing the technical aspects of the creation scenario results in different copyrights, your criterion is too flimsy to be used as a copyright guideline. Clearly, the "shutter button" standard is bullshit, especially given that any monkey can push a button.
My criterion is that the market would never have had access to the image at all, were it not for Slater bringing it forth as trade goods. Therefore, I name him owner of the original photo, and from that, allow him the right to enforce exclusivity and license any copies, as permitted by established copyright law.
The monkey, being non-human, and a non-participant in human markets, is not competent to hold ownership over anything. It has no specific rights to its own likeness, or to any of its own creations. Original ownership of property derives from the act of making something available for trade, even if no price is specified, and in respecting the trade offers of others. Wikimedia Foundation really needs to rein in its own troop of button-pushing yard-apes before lawyers get involved.