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Can a monkey own copyright? The US court of appeal decides.

Chris JHolland27 April 2018

The IPKAT website (and various newspapers) have reported the latest (and final?) stage of the legal disputes surrounding the “Monkey selfie” case. In 2014 the photographer, David Slater started an action against Wikimedia for copyright infringement following online usage without permission of the photograph of a crested macaque. The macaque had “operated” the camera set-up by Mr Slater and taken an impressive selfie. Mr Slater claimed ownership of copyright in the photograph (he had painstakingly set up his camera in a manner which made the selfie possible).  Wikimedia successfully disputed whether a photograph taken by a monkey could be protected by copyright in the first place.

Subsequently PETA, an animal rights organisation, started a separate action claiming to represent as (“next friend” in US legal terms) the interests of the monkey in question, identified as “Naruto”. PETA (on behalf of Naruto) challenged the right of the wildlife photographer to exploit the celebrated monkey selfie, given that Naruto and not Mr Slater took the photograph and was therefore the rightful owner of the copyright. The district court having dismissed the claim, PETA launched an appeal, but David Slater and PETA settled out of court in 2017. Nevertheless the appeal process went ahead and the Opinion in Naruto v. Slater has been issued by the Court of Appeals for the 9th circuit. Read also the full report from the IPKAT website.

The claim by PETA was dismissed:  “Nonetheless, we conclude that this monkey – and all animals, since they are not humans – lacks statutory standing under the Copyright Act”  Opinion of the court, page 4 (Circuit Judge Bea). The court side-stepped, perhaps wisely any practical issues about the precise identity of “Naruto” as distinct from any other crested macaque of similar appearance in the same location. Would the monkey-selfie pass the originality test under EU copyright law to qualify for copyright protection? Answers on a postcard…

Selfies, Betty the horse and copyright

Chris JHolland19 February 2016

Following the copyright questions raised by the famous “monkey selfie”, a horse called Betty grazing in a Welsh field photo bombed a selfie being taken by a young boy with his dad. Betty appears in the background with a big horsey grin. Subsequently the Bellis family entered their son’s selfie in a competition and won a £2,000 holiday as their prize. Unfortunately he owner of Betty the horse felt that she really deserved any share of the prize since her horse “starred” in the winning photo without her knowledge or consent.  You can see this reported on the 1709 blog and Walesonline along with the selfie itself. Is there a copyright issue? Not really: The boy and his father were on a public footpath. The copyright in a photograph belongs to the photographer, in this case the boy taking the selfie.  Presumably the father had the consent of the photographer when he entered the selfie in the competition.

 

 

 

 

Monkey Business and EU Copyright Law

Chris JHolland7 August 2014

The story of the copyright disagreement between the wildlife photographer and Wikipedia about the famous “monkey selfie”( See here for the BBC’s coverage ) sheds an interesting light on  the minimum requirements for copyright to subsist in a photograph under EU law.

This was discussed in the recent case before the European Court of Justice of Painer v. Standard Verlags GmbH (C-145/10). The photograph must be “…an intellectual creation of the author reflecting his/her personality and expressing his/her free and creative choices in the production of that photograph”.

Perhaps one could argue that leaving the camera where the macaque could get its hands on it demonstrates a “free and creative choice”, but on the face of it the photographer’s case that he can claim copyright does not seem that strong.

There is another way of looking at it: if the photographer had taken the photographs himself, then he could certainly claim copyright and would not suffer any loss of income from the reuse of the photographs.  On the other hand, the value of the increased publicity for his work which has come about because of the role played by the macaque could be priceless.