Copyright conundrums - monkeying about with a camera

Copyright conundrums - monkeying about with a camera

Published:

Author: Gary Assim

David Slater, a nature photographer from Gloucestershire, argues that he owns the copyright in a now famous image taken using his camera - however, Wikipedia claim that there is no copyright in the image because it was actually taken by a monkey.

Background

In 2011 Mr Slater followed a group of crested black macaques in Indonesia for three days, taking pictures as he went. It is unclear how it came about but one of the monkeys took a 'selfie' picture using Mr Slater's camera and this picture ended up online and subsequently on Wikipedia.

Mr Slater claims that he owns the copyright in the image because the picture was taken on his camera. Wikipedia argue that because Mr Slater did not press the button he cannot own the rights in the image and therefore because monkeys are not legal persons the picture is in the public domain.

A spokesperson for Wikipedia said: 'It's clear the monkey was the photographer. Because the monkey took the picture, it means that there was no one on whom to bestow the copyright, so the image falls into the public domain.'

The law, in the form of the Copyright, Designs and Patents Act 1988 (CDPA), states the owner of the image is the person who created it. That is not to say that the person who presses the trigger is automatically the creator especially if that person did not make the original contribution or provide a sufficient amount of skill, labour or judgment. However the problem with the monkey 'selfie' situation is that it is not entirely clear who did create the image, technically speaking.

So, we have two possible scenarios:

1. The monkey created the photo - there is no copyright

Common sense would dictate that the creator of the photo is the person standing behind the camera pressing the button if we follow that logic in this case then the monkey created the photo.

Whilst this would seem like the obvious answer, it is not a hard and fast rule and of course must depend on the facts of the case in question. Sometimes the creator of a photo will be the person that sets up or 'frames' the shot, not the person that presses the button.

Unfortunately for the monkey, if it did create the photo, monkeys are not legal persons so no one would own the copyright and the image would be free for all to use, as Wikipedia suggest.

2. Mr Slater created the photo - he owns the copyright

It was Mr Slater's camera but did he set up the picture and therefore create the image?

Under the CDPA in order for copyright to subsist in the image it must be original and according to current UK case law, originality requires a modicum of skill and labour in creating the work and so there needs to be some effort on the part of the creator. In the present case, whilst the exact facts remain unclear, Mr Slater has arguably expended a degree of skill and effort in setting up this image. He vested time, effort and money to travel to Indonesia, be in the right place at the right time and create the conditions and opportunity that led to the monkey taking the shot; without this effort the photograph would never have been taken.

Indeed, despite some media reports claiming that a monkey snatched the camera out of his hand, Mr Slater suggests that the shot was actually planned. He says he spent 3 days in Indonesia following the monkeys and is quoted on the BBC website saying:

'I became accepted as part of the troop, they touched me and groomed me.so I thought they could take their own photograph', he added,

'I set the camera up on a tripod, framed [the shot] up and got the exposure right.and all you've got to do is give the monkey the button to press and lo and behold you got the picture'.

If this version of events is accurate then arguably Mr Slater did create the photo because it is the result of much preparation leading up to the taking of the picture. In this respect the pressing of the button is more of a formality and is part of a process that led to the final image. On the other hand, if (as some media sources have suggested) the picture was the result of an accident then it will be harder for Mr Slater to claim rights in the image.

Implications

There are two issues emerging from this story that we think should be highlighted.

The first concerns the copyright in images not taken by humans (in our case the monkey). This issue does not only concern impertinent primates but also other images captured without human intervention, such as software written by computers or use by robots. This is currently a source of debate in the copyright world.

The second concerns the current 'selfie' trend. With the emergence of the 'selfie' as a worldwide trend, it was inevitable that legal issues would begin to crop up. Indeed, the questions raised by the monkey 'selfie' are not too dissimilar to those raised following the now famous 'Oscar selfie'. That photo which became the most-shared image on Twitter, was taken by Bradley Cooper and coordinated by Ellen DeGeneres, both of whom could potentially lay claim to the copyright in the resulting image. In addition to this, Samsung made the camera and apparently organised the stunt for publicity and so they could also assert a claim in the copyright.

So who owns the rights in a 'selfie'? The person who frames the shot and presses the button or the person who owns the camera/phone/device? If, for example, you were in the street and walked past Usain Bolt and you asked him for a selfie with you, who would own the copyright in the resulting image if he took your phone out of your hand and took the selfie of both of you himself, giving the phone back and then walking off? Copyright can vest in joint authors in certain circumstances, and where more than one person has made a significant contribution to the creation of a 'selfie' it may be that copyright in the image vests with multiple contributors

Conclusion

Copyright is an area of law that is in flux at the moment and what would be helpful is some case law guidance to clarify the issues raised above. To date there is no suggestion that Mr Slater will take legal action against Wikipedia but if he doesn't there is little doubt that another case will come along in the near future.