news

Monkey Business: The Selfie that Could Have Changed Copyright History

25th September 2018

Monkey Business: The Selfie that Could Have Changed Copyright History

25th September 2018

It is something we hear about quite often in today’s media, celebrities suing publications for using their picture without permission. Who knew, monkeys would have the same problem.

The monkey selfie copyright disputes in the USA address copyright ownership in relation to ‘selfies’ taken by some Indonesian celebes crested macaques, using a British nature photographer’s equipment.

It all started with a few websites using the image without paying for the right. They argued that the monkey, being the creator of the image, couldn’t be the legal owner of the copyright because… well… it was a monkey!

The photographer argued that it was entitled to copyright as a result of his “engineering” the image and as a result of the public posting, he lost a substantial amount of money which compromised his livelihood.

But then, in a strange twist of events, the People for the Ethical Treatment of Animals (PETA) filed proceedings arguing that the copyright should belong to the monkeys themselves (a move which was later criticised by the courts as being contradictory to PETA’s anti-exploitation objects).  PETA’s aim was to administer proceeds of the picture for the benefit of endangered species.

In England and Wales, the Copyright Designs and Patents Act 1988 (CDPA) allows an author of an original work to claim copyright if the image is the author’s intellectual creation. Technically, the monkey pressed the button. But, without the photographer and his equipment, the photo would not exist. Who was the author/owner?

Surprisingly, the dispute ultimately concluded with settlement between the photographer and PETA. It was agreed that 25% of the proceeds from the image would be donated to charities dedicated to protecting crested macaques in Indonesia.

Earlier this year the appeals court in the USA also affirmed that animals cannot hold copyrights. Its position was similar to our domestic law allowing authorship of works “generated” by computers, to be granted to the person “by whom the arrangements necessary for the creation of the work are undertaken”.

But, the question arises whether the legal reality is that clear?

Companies are not human and yet the Companies Act 2006 provides for them to have their own legal identity. In the case of copyrights, companies cannot be an ‘author’, however they can be the “first owner” of the copyrights relating to works created by employees during the course of their employment.  Non-human ownership of copyright therefore already exists.

In a joint statement, the photographer and PETA said they “agree that this case raises important, cutting-edge issues about expanding legal rights for non-human animals, a goal that they both support”. Yes, copyright laws are there to protect the business of innovation and it is highly unlikely that the monkey would have been artistically or financially motivated to take the picture. But, ownership would have generated funds for charitable purposes.

The question therefore arises whether IP rights, in fact all legal rights, will evolve in our ever changing world, with ever changing priorities.

See the infamous monkey selfie click here.