Stop monkeying around (Brands & IP Newsnotes - Issue 2)

Judge William Orrick ruled that the rights of the monkey in the famous ‘selfies’ cannot be infringed on the basis of copyright, because a monkey can’t own copyright in a photo, because plainly it’s a monkey.

In this case, during a trip to Indonesia in 2011, British photographer David Slater set up a camera in the hope of attracting a monkey to use it; lo and behold, an Indonesian macaque seized it and snapped some selfies. After the event, the photos were included in a book called “Wildlife Personalities”, to which the People
for the Ethical Treatment (PETA) objected - claiming that copyright in the photo should belong to the macaque. This transcended into a primate debate in the copyright world as to who owned the copyright but the claim was dismissed with the judge stating that “while Congress and the president can extend the protection of law to animals as well as humans, there is no indication that they did so in the Copyright Act”. So, US copyright sides with the humans, but would the UK swing the same way?

UK TO APE IT?

This copyright issue has yet to hit these shores but an important question for the English courts would be the extent to which Mr Slater could be regarded as the person who “created” the photo despite not pressing the button. Here, the author of a copyright work is the person who creates it and the first owner will usually be the author. Going by most reports, logic would certainly dictate that he at least “set up” the scene. But whether the English courts would avoid this banana skin and chimply award Mr Slater with ownership of copyright is up for grabs.