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Monkey Selfie Copyright Row Remains Unresolved

Tuesday, 23 September 2014

British photographer David Slater has faced repeated refusals from Wikimedia, the US organisation responsible for running Wikipedia, the online encyclopaedia, to take down photographs taken from his camera.

Although it was not Mr Slater’s hands that took the pictures but those of a black macaque monkey, the photographer is asserting that he owns the copyright to the pictures.

The pictures have since been deemed as the ‘monkey selfies’.

Who Might Own the Copyright in the Monkey Selfies?

Wikimedia, which has placed the photographs in its collection of free-to-use public images, claims that, because the pictures were taken by monkeys, the copyright fails to vest in a human being and so by default belongs in the public domain.

Although no one disputes that the monkey is not an author insofar as it is not a legal person (and so in receipt of the copyright), Wikimedia – and now the US Copyright Office – have made clear that the picture cannot be copyrighted. This is because there is explicit guidance that the Office “will not register works produced by…animals”, and further that the Office’s compendium specifically precludes photographs “taken by a monkey” from being copyrighted.

Therefore, with Wikimedia being a US-based company, the situation is such for Mr Slater that Wikipedia and all users of the picture will be free to put it to their own respective uses. Mr Slater has claimed that he has lost out on £10,000, in terms of income generated by the image(s), since it was first placed in the public domain.

So Is the Monkey Selfie Copyright Protected in the UK?

Not all copyright law is the same, particularly across different countries, so what is the UK’s position?

According to UK intellectual property law, under the Copyright Designs and Patents Act 1988 copyright can only be claimed if the work is the author’s intellectual creation. On that basis Mr Slater has argued that, without his necessary camera set-up and tripod usage, as well as his preparations for the photography trip (including flights, travel etc.), the photographs wouldn’t exist. Furthermore, he alleges that he altered the images after they were taken, e.g. by cropping or applying filters.

Although the monkey cannot hold the copyright in the UK either, it is unclear whether or not the English courts would grant the copyright to Mr Slater. One possible approach would see the courts rule that if one owns the camera which took the picture then one would own whatever photographs produced by the camera, even if an animal were to press the button(s) on the device. Without the claim being heard in court though, it remains uncertain whether this argument would hold.

However, such a suggestion would mirror the state of intellectual property law with regard to the film industry. Here, despite the actor being in front of the camera it is rare that he would take the copyright; much more common is the presumption that the director, producer, or the person who provide the created push would be awarded the copyright.

For specialist intellectual property advice contact Peter Gourri today by email or telephone 0207 611 4848.

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