The Photographer, The Monkey and The Selfie: Who Gets the Picture?

Wednesday 13 August 2014 @ 11.49 a.m. | IP & Media | Legal Research

In recent days, the press and various legal commentators have been amused by the story of Wikipedia's refusal to delete a photograph it claimed was owned by a monkey.

The story is interesting for two reasons, first; because it raises the issue of ownership of photographs an individual may take of themselves (known as 'selfies"), photographs usually taken on devices like mobile phones which even a monkey can operate (obviously!), but especially when said photos, are then reproduced or published on social media. The second point of interest is the broader and perhaps less controversial one legally, of whether an animal other than a human can own or claim copyright?

The Facts Were About Monkeying Around

Essentially this story results from what is reported as the US based organisation Wikimedia's (the parent organisation for Wikipedia) refusal to comply with British wildlife photographer David Slater's "repeated requests" to remove an image of his which he claims has been used online without his permission.

The photograph, it is reported, was one of a series inadvertently taken by Mr Slater in Indonesia in 2011. Inadvertently, because while attempting to get a "perfect image" of a crested black macaque monkey one of the animals became curious about his camera equipment and, capturing a camera for itself, ended up taking many "selfies".

Wikimedia is reported to be claiming that: "because a monkey pressed the shutter button it should own the copyright".

Mr Slater is now facing a legal battle with Wikimedia who it is reported have added the image to its collection of "royalty-free images online", a collection of 22,302,592 images and videos free to be used by anyone online.

Mr Slater now claims that Wikimedia's decision is jeopardising his income as anybody can use the image royalty free. Mr Slater's complaint to Wikimedia, claiming he owned the copyright of the image, was rejected in recent reports from Wikimedia, Wikipedia's editors having decided that Mr Slater had no claim on the image as the monkey took the picture.

What the Court of Social Media Thinks?

From a Telegraph Survey asking readers about the story and who should own the photograph, the results appear to have been "neck and neck" between the photographer and the monkey, with the photographer, Mr Slater, just getting the nod as owner over the monkey by 1000 or so votes, as follows:

Total votes 47,360 votes

For Mr Slater - 43.36% (20,581 votes)

For the Monkey - 40.3% (19,086 votes)

For Free (Public domain) - 16.24% (7,693 votes)

But the court of Social media while it has the numbers is not a court of law.

What the Courts of Law Would Make of the Claims

In an article published by website Lexology, author Annette Rubinstein says that under Australian law, the matter is covered by the point that an animal cannot in fact own copyright, nor for that matter any type of property. Sadly perhaps for the monkey, it is a basic legal principle that for ownership to exist you require a legal person (a human or corporation, capable of suing and being sued). As Ms Rubinstein says:

"In Australia, it isn’t necessary to look at the Copyright Act to work out if an animal can own copyright. Not being a legal person, it can’t own anything, and unless it is a wild animal, it is itself property (although no cat has ever acknowledged this)."

Establishing that the monkey has no claim to ownership of the copyright, who does own it? Well according to Ms Rubinstein the simple answer is "no-one" or "no copyright subsists in the picture".

"In the case of the monkey selfie, no-one. Section 10 of the Copyright Act defines the author of a photograph as the person who took the photograph. No person took the monkey selfie, and as a result, like some compilations and computer generated data bases, it has no author, is not a “work” for the purposes of the Copyright Act, and copyright does not subsist in it . . ." (emphasis added).

Social Media Selfies and Photographs Generally

An article published by Herbert Smith Freehills (HSF in one of its electronic newsletters) makes the interesting point that:

"At a time when social media photos in particular can be worth millions, copyright protection should not be forgotten or left to chance."

In other words, posting photographs to sites like Twitter, Facebook and alike requires consideration in advance in terms of copyright and who owns it, especially where the photograph may turn out to be valuable later. The HSF article relates a story from the this year's Academy Awards as an example of this:

". . . the infamous ‘Oscars selfie’ was so popular it reportedly‘crashed’ Twitter. The photograph was taken by actor Bradley Cooper of himself and 13 other celebrities including Ellen DeGeneres, Meryl Streep, Angelina Jolie and Kevin Spacey. . . The selfie was later rumoured to be part of a pre-planned $20 million sponsorship deal between Samsung and ABC, the US television network hosting the Oscars, to promote the Samsung Galaxy smartphone. . . . On the above principles, in the absence of an agreement to the contrary, Bradley Cooper would be the ‘author’ and owner of copyright in the photograph under Australian law. While in that case, Samsung probably received more publicity out of that stunt than it anticipated, had it wanted to exercise control over the distribution of the photo, it could only have done so with an assignment of copyright from Bradley Cooper."

The obvious point being that Australian law favours the human hand that takes the photograph as far as copyright ownership is concerned, so if the intent is to profit from a photograph, then some consideration of who takes the photograph and how it is published would seem to be prudent and wise.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.

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