Blog - 18/01/2016
Copyright in photographs: Monkey Business?
No doubt you will have seen the so-called “monkey selfie” picture of a black macaque smiling at the camera when it pressed the button to take the photo. What you may or may not have heard about is the ongoing debate and legal proceedings surrounding the existence and ownership of copyright in such photographs. The owner of the camera and the person who claims copyright in these photos is British nature photographer David Slater.
In the US the People for the Ethical Treatment of Animals (PETA) brought a claim arguing that copyright in the photo should belong to the macaque, named Naruto or Ella (depending on the source), who pressed the camera trigger and took the photo. PETA were seeking to manage the copyright in the photographs that Naruto/Ella took with the proceeds to be used for the benefit of Naruto/Ella and the macaque’s community. The claim was dismissed with the judge stating that “While Congress and the president can extend the protection of law to animals as well as humans, there is no indication that they did so in the Copyright Act”.
Wikipedia’s use of the images is also in dispute as it takes the line that there can be no copyright in existence in relation to a photograph created by a non-human. Wikipedia is therefore refusing to take a licence from David Slater to use the photographs on its website. Mr Slater is apparently considering bringing proceedings against Wikipedia for copyright infringement.
Although not currently before the UK courts, it is nevertheless interesting to consider how such a case might be dealt with in the UK under the Copyright, Designs and Patents Act 1988 (the Act).
Does copyright exist?
For copyright in a photograph to subsist:
- the author must be a British Citizen, an individual domiciled in the UK (or another country to which the Act extends) or a body incorporated in the UK (or another country to which the Act extends); or
- it must have been first published in the UK (or another country to which the Act extends).
If the author is taken to be David Slater then copyright will likely subsist under both of the above heads but even if this is not the case then it could still be possible for copyright to exist under the second “first published” head as this does not make reference to who the author may or may not be.
The photographs also need to be “original” and working on the basis that they are the author’s own intellectual creation this could prove to be a puzzle too far for the monkey even though the standard of originality is generally taken to be a low threshold to meet. As to whom the “author” is, this is dealt with below. If the author were to be David Slater then in the proving that he “created” the photos (as set out below) he would also be likely to meet the threshold for originality by showing how he set up the scene and stamped the work with his “personal touch”.
If the author were to be Naruto/Ella then it would be a lot harder to argue that the photographs are the author’s own intellectual creation as you would likely need to show some intention on the part of the monkey to set up the scene and then take the photograph. It is, we suspect, likely to be difficult to even show that Naruto/Ella knows what a photograph is let alone that they made any choices over the composition of these photographs.
Who owns the copyright?
The “author” of the work is the first owner of any copyright in it. However, “author”, in relation to a work, means the “person” who created it.
Subject to any amendment to the Act or some very stretched interpretation by a judge, it is very difficult to see how a macaque could fall within the definition of a “person” notwithstanding the shared DNA. Therefore it will not be possible for Naruto/Ella to be the author or to own copyright in the photographs in the UK as things currently stand.
For David Slater to argue that he owned it he would need to show that despite the fact that he did not press the button to take the photo he nevertheless “created” the photo. In Creation Records Limited v News Group Newspapers Limited Lloyd J stated that:
“It seems to me that ordinarily the creator of a photograph is the person who takes it. There may be cases where one person sets up the scene to be photographed (the position and angle of the camera and all the necessary settings) and directs a second person to press the shutter release button at a moment chosen by the first, in which case it would be the first, not the second, who creates the photograph.”
The reports on the circumstances surrounding the creation of the photographs vary quite a bit with some suggesting that Mr Slater “engineered” the scene including that he positioned and held the tripod for the camera throughout or that he it was his idea to leave them to play with the camera within his eyesight knowing that a photo was likely to be taken. Some other reports suggest that the camera was instead stolen by the monkey. In any event it is at least arguable that Mr Slater set up the scene (choosing light, angle, camera settings, scenery etc.) but he could not argue that he chose precisely when the photograph was to be taken or what precisely was in the frame at that time. Mr Slater may argue that it was precisely this “natural” timing of the shot he was hoping to capture by setting up the scene as he claims to have done and that he knew the likely range of subject matter that would be in the frame of the photo.
Unless this comes before a UK court we will not know for certain whether copyright actually exists in these photographs or if anyone is able to own the copyright but it is possible to make an argument that Mr Slater created and owns such copyright.
If you wish to discuss any of the issues raised above, please contact Simon Miles – Partner, Charlie White – Associate, or any member of the Edwin Coe Intellectual Property team.
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