An ape takes a selfie: but who owns the copyright in the photograph?
This question is in the news because of a decision contained in the recent Wikimedia Foundation Transparency Report:
A photographer left his camera unattended in a national park in North Sulawesi, Indonesia.
A female crested black macaque monkey got ahold of the camera and took a series of pictures, including some self-portraits.
The pictures were featured in an online newspaper article and eventually posted to Commons.
We received a takedown request from the photographer, claiming that he owned the copyright to the photographs.
We didn’t agree, so we denied the request.
The “photographer” was David Slater from Gloucester in England, and he is reported as upset at this decision. He was quoted yesterday as saying:
They have denied my request to take off their site.
The photograph from 2011 got worldwide coverage because the monkey took it but some claimed because the monkey took the pictures – she owns the copyright.
It makes me very angry, I’m a professional photographer – it costs me over £2,000 to do the trip. It’s my livelihood.
You take 20,000 shots to get one image that sells, it was potentially a good earner for me, I’ve lost over £10,000 because of it.
So who, if anyone, owns such a photograph?
As I do not know the full facts of what happened to Mr Slater and his camera that day in Indonesia, I cannot comment on this particular case. Views even differ as to whether it was an ape or a monkey (some call the macaque an ape).
But there are some general points one can perhaps make about such selfies and intellectual property; so let us consider a hypothetical ape taking a selfie, and let us assume the picture is not then cropped or otherwise substantially modified before it is published (else the person doing the cropping or modification may claim some intellectual property rights). What would be the legal position?
First, the copyright owner is never going to be the ape, at least not under the law of the United Kingdom. This may be unfair, but only natural or “legal” persons (such as corporations) can own property. Even those lucky pets who are bequeathed a fortune by some eccentric millionaire will find their greedy paws do not get on the money: the usual arrangement is that it is held for their benefit by some human or corporate trustee.
So, if not the ape, then who? Here the position is less clear and we have to look at the letter of the law.
The law of copyright is complex and sometimes counter-intuitive, but it is an area of law which in the UK is entirely the creation of statute. What this means is that unless something fits squarely within the statutory definitions of the applicable legislation – here the Copyright, Designs and Patents Act 1988 – then it does not have the protection of the law of copyright. And indeed many things, from an arrangement for an album cover to certain film editing techniques, have failed to be deemed by the courts to be “works” which can be subject to the law of copyright.
There is, of course, no doubt that a photograph is capable of being something in which copyright can subsist: section 4(2)(b) of the 1988 Act defines a photograph as a “recording of light or other radiation on any medium on which an image is produced or from which an image may by any means be produced, and which is not part of a film”. Section 4(1)(a) in turn defines an “artistic work” as a “a graphic work, photograph, sculpture or collage, irrespective of artistic quality”.
But then it becomes more tricky. Section 11 of the Act provides that “the author of a work is the first owner of any copyright in it”. Who is the author? Well, under section 9(1), the author is “the person who creates” the work. The rest of section 9 does not expand on who the creator of a photograph is, but as a matter of common sense and practice, it is normally the person physically standing in a certain place and manually taking a picture.
However, this sensible approach will not cover every situation. For example, a nature photographer may set up a trip-wire or other sensor so that animals may be photographed whilst the photographer is far away. In such a case, the photographer would surely still be the “creator” of the photograph even though it was the passing animal that effectively pressed the button on the camera. As a copyright lawyer would describe it, the nature photographer setting up the shot is showing as much “sweat of the brow” as if he or she was taking the picture themselves.
And so, by analogy, if the same photographer handed a camera to an ape before patiently goading it so that an amusing selfie would be taken, then this presumably would also be a copyright work of the photographer. The photograph would still be the result of an exercise of human skill.
But what happens if the picture is not part of some human’s creative endeavour – that an ape has, in fact, simply snatched the camera and taken an amusing selfie?
Here the question is whether there is any meaningful “creation” of a work – or even if there is a “work” at all. It would perhaps be as if a stray cat had rubbed paint on a canvas or a wild dog had chewed loudly at the strings of a Stradivarius: the result may be something which, if it was created by a human, could qualify to be a work under the law of copyright; but because it was done by a beast, it may not even be a “work”. The incidental use of a human tool is legally irrelevant: the resulting circumstance is no more a human creation than an admirable bird’s nest or a pleasing formation of flying geese.
As such, an unprompted but memorable ape selfie will not be an artistic work for the purpose of copyright law, just as the sound of that very same camera being smashed repeatedly by the ape on a rock would not be a musical work. An infinite number of monkeys on an infinite number of typewriters may create something as great as the works of Shakespeare, but they would never have any proprietary rights over the literature they had created.
A thing made by an animal may well be appreciated by humans, but not everything liked by humans can be bought and sold as a chattel or as an intellectual property right. And so when such things do occur, we should not seek to monetise them as some form of property; we should instead realise how lucky we are that such wonderful things exist at all.
The writer is a City of London solicitor and a journalist. He won “Mainstream Media Blogger of the Year” at the 2013 Comment Awards.
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