Monkey Selfie-Legal Aspects

Background

David J. Slater is a British wildlife photographer from Gloucestershire who ventured to an Indonesian jungle in 2011 to take photos of extremely rare crested black macaque monkeys. As he narrated the story to the telegraph, he told “They were quite mischievous, jumping all over my equipment and it looked like they were already posing for the camera when one hit the button.”A curious female grabbed his camera and snapped hundreds of shots. The best one out of the image was a selfie by a female macaque grinning toothily into the camera. Mr. Slater eventually retrieved it.

The images made headlines around the world and were used on a number of websites, newspapers, magazines, and television shows. Some of these pictures were posted on Wikimedia Commons[1], where images and videos are offered to the public for free. It was nominated for the best public domain photo on Wikimedia Commons.

In early 2012, Mr. Slater officially asked Wikimedia to take down the image. It was removed, but was later added again by another user and has remained on Wikimedia Commons. Mr. Slater contends that he owns the copyright over the said photographs. He further states that he has suffered considerable expense to get these photographs as he traveled into the deep forests of Indonesia and spent three days following the animals with his camera equipment and even hired the guide who led him deep into the wilds, where the inquisitive monkey could grab his camera and start snapping.

He has also argued that he would hold the copyright to any images taken by an assistant. In effect, the smiling simian was his assistant that day in the jungle, he reasoned.

On the images’ discussion page one of the editors who uploaded the photos wrote that “This image was shot by a monkey who picked up a camera that a photographer had dropped” and was therefore not eligible for copyright.

Wikimedia argues that no one owns the photo — not itself, not Mr. Slater and not even the shutter-happy monkey and the image falls into the public domain. Mr. Tomasz Kozlowski, who is responsible for uploading the image to Wikimedia, told the Telegraph: “There has been some confusion over who owns the copyright. As Wikimedia is based in the US, we are guided by their law, which says that works that originate from a non-human source can’t claim copyright. The work did not originate from Mr. Slater as by his own admission he did not take the picture, the monkey did. However, monkeys can’t and don’t own copyrights.”

“he who takes the selfie owns the selfie”

This legal pseudo-doctrine encompasses two legal terms “authorship” and “taking/capturing”. Technically, there are three parties in this entire episode: a UK wildlife photographer, a US website, and an Indonesian macaque. Thus, we have to look into the Copyright laws on each of these countries to analyze the legal position of the impugned Copyright.

• Author

Under US Copyright Law, the term ‘authorship’ implies that, for a work to be copyrightable, it must owe its origin to a human being.[2] Materials produced solely by nature, by plants, or by animals are not copyrightable.[3]

Under the UK’s Copyright, Designs and Patents Act, 1988, the copyright in an artistic work such as a photograph is owned by the person who creates it.[4] And, under English law, “person” means a human or corporate entity, but does not include animals.

Under Indonesian Copyright laws, the person deemed to be the Author.[5]

Mr. Slater can file a suit for Copyright infringement at the countries where the photograph has been used without authorization. But none of the countries among the UK, US, and Indonesia have given recognition to the work created by animals. And it is an undisputed fact that Mr. Slater himself accepted that monkey clicked the picture. Hence, the claim of Wikimedia, that the impugned photograph falls within the ambit of the Public domain, is more apt and suitable. It is worth noticing that Indonesia and Britain are the members of Berne and TRIPs conventions and hence if the suit is filed in the UK (as it is most likely) then the impugned photographs will be treated in the same manner as under UK copyright law.

• Effect of Ownership of Camera

As the general rule of all Copyright law, it is formulated to protect the creators of artistic works and not the owners. Copyright protection is given for incorporeal property and the camera, being a movable property, is a corporeal property. Under US Copyright laws, mere ownership of a book, manuscript, painting, or any other copy or phonorecord does not give the possessor the copyright. The law provides that transfer of ownership of any material object that embodies a protected work does not of itself convey any rights in the copyright.[6]

Under an earlier copyright law – the UK Copyright Act 1956 – the author of a photograph was defined as the person who at the time the photograph was taken “owned the material on which it was taken but under Copyright, Designs and Patents Act, 1988, author, in relation to a work, means the person who creates it[7] and the author of a work is the first owner of any copyright in it[8].In the instant case, Mr. Slater is neither the author and hence he cannot be termed as the owner of copyright under UK copyright laws.

Under Indonesian Copyright law, the strict interpretation of Article 7 read with Article 9 of the Indonesian Copyright Act leads to the conclusion that the Indonesian government is the rightful owner of the impugned copyright. Article 7 of the Indonesian copyright law inter-alia says that if a work is ‘designed’ by one person and ‘worked out’ by another, then the one who designed the work gets the copyright. Going by the words of Mr. Slater, it was he who has set up the camera and it was the Macaque who clicked the photographs. In other words, the macaque has done the designing part while Mr. Slater just left his camera.

Further Article 9 inter-alia says if any legal entity claims right in work without mentioning its author then such a legal entity is deemed to be its author unless the contrary is proved. The impugned photographs are shot at Indonesian National Park. Thus, if the Indonesian government, being a legal entity, claims the copyright under Article 9, then it would be just and proper under Indonesian Copyright laws unless the contrary is proved.

The image was taken by an assistant

In the instant case, Mr.Slater also contended that the Macaque should be considered as the ‘assistant’ of him as Mr.Slater took all the pain behind setting up the perfect conditions for the selfie while the macaque only clicked the shutter. This claim of Mr.Slater would have been successful under the Copyright laws of the UK and USA if there would have existed any written employer-employee agreement or “work made for hire” agreement between them. If one goes by the general laws of Agency, the employee is a person and thus an animal cannot hold an agency. A person can be the owner of an animal like a bull in a bullock cart but the bull can’t be termed as an Agent.

• Test of Agency

The best explanation for the Cost-Benefit Internalization theory is based on the moral and economic principle that a person must bear the foreseeable consequences of her voluntary actions. Thus, the principal must bear the consequences of hiring an agent to the extent it is foreseeable that harm might result from the agent’s unauthorized acts.[9] A person may include an artificial or natural person but in no way it will include animals. Although, sometimes, the owner of an animal may be held responsible for the actions of his animal but won’t amount to agency.

Under UK Copyright laws, if an artistic work is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work subject to any agreement to the contrary.[10] No agreement can be signed with or by an animal. Thus, an animal cannot be termed as an employee under sec. 11 of Copyright, Designs, and Patents Act 1988, and thus Macaque cannot hold the copyright.

• “Work made for hire” Agreement

Section 101 of the Copyright Act (Title 17 of the U.S. Code) defines a “work made for hire”. A work made for hire[11] is either

• a work created by an employee as part of his/her regular duties. A person is an employee if the hiring party has the right to control the manner and means by which the work is created; or
• a specially commissioned work for certain categories of works and only if there is a written agreement between the employer and employee stating that the work is made for hire.

Thus, under US Copyright law also, an employee is a person. Therefore, a macaque cannot hold a work made for hire agreement under US copyright laws making the claim of Mr.Slater invalid.

Joint work

One possible way out for successfully claiming the copyright under the laws of the UK, USA and Indonesia might be that it is a joint work. According to the US Copyright Laws[12], the copyright of the work is initially held by the author of the work. The authors of a joint work are co-owners of the copyright in the work. Further, Section 101 provides that:

“[a] ‘joint work’ is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole”.

Therefore, in the present case, the court could find that the monkey selfies were works of joint authorship between the macaque and Mr.Slater. This would then allow Mr. Slater to exercise economic rights over the works of joint authorship between human and non-human authors.[13]

• Liability of Wikimedia

As per, Digital Millennium Copyright Act enacted in 1998 stated that the Internet Service Provider (ISP) cannot be held liable for the transmission of copyright-infringing content except when such ISP remove such content after a proper notice regarding copyright violation has been received from the copyright owner. It is important to note that this notice unlike other notices must: be in writing, be signed by the copyright owner or the owner’s agent, identify the copyrighted work claimed to be infringed (or list of infringements from the same site) and identify the material that is infringing the work.

Under the UK Copyright law,[14] “work of joint authorship” means a work produced by the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author or authors. In the instant case, both the macaque and Mr.Slater have contributed to the said photograph. The setting up of the camera and other instruments weighs as equal importance as clicking the shutter by Macaque. Hence, under UK copyright law, the said photograph can be termed as a work of Joint authorship.

Under Indonesian Copyright Laws[15], the author includes joint authors who have either inspired in the creation of work based on several parameters such as intellectual ability, imagination, dexterity, skill, or expertise. In the instant case, the dexterity of Mr. Slater cannot be questioned as he is a professional wildlife photographer but the things are not the same for Macaque. There is grey area of discussion that whether a macaque possesses the intellectual ability, imagination, skill, or expertise. Not only that, we all know that macaque may possess skills such as climbing trees but can it be termed as Intellectual ability under Intellectual property laws. Thus, Indonesian law requires interpretation in this area of law.

Conclusion

Though various legal aspects of the case have been brought out and discussed above with reference to laws of respective countries, US copyright regulators have recently interpreted chapter 300 of the US Copyright Office and issued a clarification on the subject matter without specifically mentioning the impugned image that has a direct bearing on the case. The clarification in substance means that the subject selfie is not subject to copyright under US Copyright laws. The clarification states that in a classic case of Burrow-Giles Lithographic Co. vs. Sarony[16], it has been stated that the copyright laws only protect “fruits of intellectual labor” that “are founded in the creative powers of the mind”. Because the copyright law is limited to “original intellectual conceptions of the author”, the office will refuse to register a claim if it determines that a human being did not create the work.[17]In the instant case, work was neither founded nor originated by either of Mr, Slater or Macaque. It may be termed as a natural occurrence or better to say an accident. Thus, according to the US copyright office, neither Mr.Slater nor the macaque used any intellectual labor or creative power in this accidental episode, and therefore neither has claims to the copyright.