I would agree that the work passes the threshold for creativity/originality; but that the aspect of it performed by the photographer (as much as I’d personally be in favor of paying him for being the guy to slog out there) does not meet the definition of authorship of the work, while the aspect he did perform falls under ‘sweat of the brow’.
17 USC 101 says that:
“A work is “created” when it is fixed in a copy or phonorecord for the first time; where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time, and where the work has been prepared in different versions, each version constitutes a separate work.”
As for what ‘fixed in a copy’ means:
““Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed.”
and
“A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.”
In this case, the issue would seem to be that the fixation of the work (to my reading, that would have to be when the image file was written to the memory card from the camera RAM buffer) was not “by or under the authority of the author”.
The photographer himself states that the monkey was in unplanned and unexpected control of the camera at the time of fixation, so either the monkey the author(if monkeys are allowed to be authors for the purpose of the statute) or the work is without author(if they aren’t); but the image was definitely not taken ‘by or under the authority of the author’ if the author is supposed to be the photographer.
The variable that remains up in the air is how much postprocessing the image received: mere copying or compression of the file would be hard pressed to constitute originality, image adjustment might, substantially creative editing presumably would(though Bridgeman Art Library v. Corel strongly suggests that a photographic workflow is not necessarily accorded much respect as creative).
I don’t see how the photographer can be the ‘author’ of the work for these purposes, given the lack of direct or delegated agency at the time of fixation; and it seems quite likely that the steps taken from point of creation to wikipedia do not rise to the level of creativity required to establish authorship of a derivative work with a copyright of its own.
