Scintilla – a flash, a spark, an iota. Shorthand for creativity and an indicator of inventiveness under Australian law.

Monday, August 11, 2014

Monkey saw, monkey did - who owns copyright in a selfie taken by a monkey?

By David Stewart, Associate

'It's so easy any monkey could do it' is a phrase that gets bandied around to describe a task that requires so little skill and effort that any of our supposedly inferior opposable-thumbed brethren could do it.

Like 'taking a selfie is so easy any monkey could do it.'

But what if a monkey did actually take a selfie? Well, it happened. A monkey has taken a selfie, and now controversy is boiling over the answer to the age old question – who owns the copyright in a selfie taken by a monkey?

Before Scintilla tries to answer that question, we should start with a little background.

In 2011, British photographer David Slater was in Indonesia to capture photographs of crested black macaques. The story goes that one of the macaques stole Mr Slater's camera, and took hundreds of photos including some pretty good selfies. Mr Slater eventually recovered the camera, and published some of the selfies online, to significant international acclaim.

Recently, Wikimedia Commons added one of the selfies to its collection of royalty-free images. Mr Slater demanded that the image be taken down on the basis that he owns the copyright in the photo, but Wikimedia refused because 'as the work of a non-human animal, [the selfie] has no human author in whom copyright is vested.'

So what is Wikimedia getting at? Well, subject to an employee-employer or work for hire relationship (which we doubt existed between Mr Slater and his furry fiend), ownership of a copyright work vests in the author of that work. Under the Copyright Act 1968 (Cth), the author of a photograph is 'the person who took the photograph.'

Applying that to the present case, the owner of the selfie should be the cheeky macaque who took the photos. But is the macaque a 'person' within the meaning of the Act? We'll leave the genetic debate to others more qualified than us, suffice to say the legal definition does not include non-human beings such as monkeys*. As such, there is no human author in which the copyright can vest, and the photo is therefore part of the public domain. 

In response, Mr Slater has argued that he is the rightful owner of the copyright as he did all the work preparing the camera before it was stolen by the cheeky monkey. For example, he claims that he put the camera on a tripod and input the camera settings that were eventually used by the macaque to take the shot. Given the position, at least under Australian law, that the author is the person who 'took the photograph', Mr Slater's preparatory work is unlikely to be enough to be recognised as the owner of the copyright in the selfie.

Ultimately, the moral of the story is that if you want to make money from a selfie 'taken' by your pet dog, cat, fish or [insert favourite pet animal here], make sure it's you that hits the shutter button.

* Interestingly, a 'person' can in some cases outside of copyright law include a corporate entity. This begs the question how a monkey, which bears many more similarities to a human being (such as being alive), falls outside the definition. For fear of opening a can of worms, we'll leave that philosophical question for another time.

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