Monkey selfies? Copyright? What?

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4 October 2017

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This is the kind of case that makes the lives of intellectual property attorneys really interesting.

The case involves a freelance wildlife photographer, David Slater and the animal rights organisation, People for the Ethical Treatment of Animals (PETA). The story starts in 2011 when Slater, on location in a forest in Indonesia, had his camera stolen by a macaque monkey called Naruto, who accidentally took a couple of entertaining selfies…

Luckily for Slater, he managed to regain possession of his camera, but when Slater published the monkey selfies, they quickly went viral. Various websites used the photos without Slater’s permission, and the dispute started in the USA when Slater objected, on the basis that he owned the copyright in the photos, and demanded that Wikipedia remove them from the Internet.

PETA leapt into the fracas after that, claiming that Slater had no claim to ownership, as the copyright was in fact owned by Naruto, the monkey, as it was the monkey that had captured the image.

To take a step back, photographs are a type of creative work that qualify for copyright protection automatically. It is not mandatory to register copyright in order for it to be enforceable and in most countries in the world, except for a few notable exceptions such as China and the USA, it is not even possible to register copyright. In general, copyright comes into existence automatically, and the person who takes the photograph will own the copyright in it (although, in South Africa, for example, there is an exception to this general rule that provides that in circumstances where a person commissions the taking of a photograph, and pays for it or agrees to pay for it, the copyright will be owned by the commissioning party).

Turning back to the case at hand, unfortunately, the US Copyright Office issued an official guidance stating that copyright only exist in a work that is created by a human, which brought into question whether copyright subsisted in the monkey selfies at all. This spurred PETA into arguing that monkeys like Naruto are “worthy of having legal ownership of their own intellectual property and holding other rights as members of the legal community”.

Fortunately, or unfortunately, it seems as if the question regarding the status of the rights of primates to own intellectual property will remain, for the time being, unanswered, as it was recently announced on PETA’s blog that the parties have reached settlement in the matter which apparently requires Slater to donate 25% of future revenue generated from the images to charities that protect monkeys like Naruto.

It has also been reported that Slater and PETA have joined forces and requested a US Circuit Court to overturn a ruling made by a lower court that held that animals are not capable of owning copyright.

So the world will have to wait, and see what happens next time a monkey (or any other animal) selfie captures the attention of the world’s human population.

Vicky Stilwell
Director
Trade Mark Attorney
Email vickys@kisch-ip.com
Tel +27 11 324 3049