Just when we thought that the business with the selfie-taking macaque had finally died down and that it was safe to walk into a colleague’s office without fear of being asked whether a monkey was capable of holding copyright under UK law, it seems that the issue is raising its selfie-head once more.
You may recall that earlier this year (or maybe it was last year – I am trying to forget) the macaque selfie came online and went viral. The photographer David Slater was claiming copyright in the photo and demanding royalties from its international circulation and use. Apparently, back in 2011 he had visited a troop of monkeys on the island of Sulawesi and set up and left his tripod and camera for the monkeys to play around with. The ‘idea’ of the selfie was undeniably his but it was the monkey that had taken the photo – and incidentally, but importantly, only ONE of the many hundred that the monkey took, was in focus.
Legal discussion and argument also went viral – I even went on the radio for goodness sake – but the simple fact remains that under UK law, it is not the owner of the equipment that owns the copyright (otherwise I could lend my rather substandard camera to David Bailey and earn a fortune) but the ‘qualifying individual’ under UK law. Sadly for Ella the macaque, ‘monkeys’ are not part of the definition of qualifying individual. So the discussion went quiet and we have all been getting on with our lives.
It seems that the animal rights organisation PETA (People for the Ethical Treatment of Animals) has taken legal action in the US on Ella’s behalf claiming that Ella owns the copyright and should reap the financial benefits. PETA has clearly read part of the initial judgment – i.e. that it is the ‘person who takes the photo which owns the copyright’ but stopped reading there. Before the part that says monkeys are not qualifying citizens – under UK law or under US law, where this action is taking place.
So is PETA suggesting that monkeys be granted legal standing to own ‘property’ – copyright after all is an ‘intellectual property’ right? Conferring legal personality on animals, which we are currently a long way from doing, gives rise to a number of problematic issues. Who would decide how the property is to be distributed – during the animal’s lifetime and afterwards? Who helps Ella decide if she wants to stay on Sulawesi or buy her own island? Does she want to eat the fleas of her nearest and dearest or does she want to eat the best bananas that her royalties can buy? Perhaps PETA is suggesting that the courts will make these decisions as they currently do with regard to property held by minors – i.e., through the incorporation of a trust or the concept of guardianship.
As the law currently stands, I anticipate that the US judge will have no option but to maintain the ruling that Ella is not a ‘qualifying individual’ and therefore cannot hold property, whether she took the photo or not. And perhaps this then might be the end of the matter. Please do not let us be discussing this during the whole of the copyright protection period in the photograph – lifetime of the author plus 70 years. And that is if there is even copyright protection in the photograph in the first place – best not get me started on that one……