Monkey takes photograph – but who owns the copyright?

An interesting dispute was reported in The Daily Telegraph today.

Wikimedia has refused to take down photographer David Slater’s image of a monkey from Wikipedia, arguing the monkey itself pressed the shutter button and so Mr Slater does not own the copyright. That makes it royalty-free, or so Wikimedia says anyway. Mr Slater naturally argues otherwise. But what’s the legal position? Osborne Clarke partner Lorna Brazell explains:

The legal issue here is who (if anyone) is the author of the picture. Only a work created by an author gets copyright protection.

What’s the definition of the author? 

It is the “person” who creates the work. This work (the picture) was clearly created by the monkey – IF anyone can be said to have created it at all, since the pressing of the shutter release was as accidental (in the sense of unintended) as the pressing of the release by the floor if the photographer had accidentally dropped the camera.  

Celebes crested macaque
A different stock photo of a monkey which Lawyer 2B definitely does have permission to use

So then does the monkey get copyright? 

The answer to that is the answer to the question, is the monkey a “person” for legal purposes? In one place it is arguable that it is – the Spanish Balearic Islands have conferred legal personhood on great apes, though not on monkeys generally. But in the UK, there is very little plausible legal basis for that suggestion.

The only remotely similar legal interest enjoyed by primates other than humans is the ban on using great apes for medical research purposes – again, limited to great apes not monkeys, and a long way short of the broader set of rights which would go with legal personhood.

If the monkey does not get copyright because it is not a person, can it be said that the photographer made arrangements (bringing appropriate equipment to the scene) enabling the photo to be taken and so in that sense can be said to have created it? 

Yes, that can be argued. The photographer’s arguments about his investment having enabled the picture to be taken resonate with the principles underlying ownership of database right, or of computer-generated artistic works (those produced by running a computer program which, for instance, analyses the elements of Mondriaan’s works and creates a new Mondriaan – not works created by a person operating PhotoShop). In those cases, the author/maker/ owner is the person who invests in the arrangements necessary for the creation of the work. 

So Mr Slater’s best bet might be to argue that his complex and expensive digital camera is in fact a computer, and the photograph a computer-generated work in which the computer operation was merely triggered by the physical action of the monkey.

This is not impossible: the settings of at least focal length and depth of field were almost certainly automated and so result from the operation of software somewhere in the camera. 

Will it succeed? 

Too close to call – Mr Slater will clearly have the benefit of the court’s sympathy, but a judge also has to consider the wider consequences of such an interpretation of a provision which fundamentally was not crafted with circumstances such as these in mind.

UPDATE: The US Copyright Office has now come out and said that the picture cannot be copyrighted.

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