The application of intellectual property law in our modern age is fraught with complexities. As societies and technologies develop, situations invariably arise that the drafters of legislation had perhaps not considered.
In 2011, when on a trip in Indonesia, nature photographer David Slater’s camera was snatched by monkeys who then managed to take some photographs with the camera. One of these, an apparent ‘selfie’, has since gone viral.
The Telegraph recently reported that Wikipedia refused a "notice-and-takedown request" from Mr Slater on the basis that US Copyright Office policy is as follows:“The term ‘authorship’ implies that, for a work to be copyrightable, it must owe its origin to a human being. Materials produced solely by nature, by plants, or by animals are not copyrightable.”
Interpretation of the word “solely” would seem to be key. It is also not clear that US law would actually apply to a photograph taken in Indonesia by a native Indonesian jungle resident. The position under Indonesian law is not known.
Some commentators have argued that as Slater created the conditions in which the photos were taken, he is the rightful owner. Indeed, Slater has argued that ownership of the photo should vest in him, given the serious financial investment that led up to the photo. This would seem to chime with the much cited words of Mr Justice Petersen in the historic English law copyright case of University of London Press Limited v University Tutorial Press Ltd (1916), that “what is worth copying is prima facie worth protecting.”
However, “worth protecting” for whose benefit? Who is the rightful owner of the photograph? As some people have commented in the press, perhaps this should be the monkey?!
Under the UK’s Copyright, Designs and Patents Act 1988 (CDPA) the first owner of copyright in a work (such as a photograph) is the author, i.e. the person who created the work. For copyright to arise, the author must be a “qualifying person”, i.e. British citizen, an individual domiciled or resident in the UK, or a body incorporated under the laws of the UK (section 154 CDPA). This would appear to discount monkeys.
If English law applied, could Slater be said to be the “author” of the photograph taken with his camera?
It is difficult to see how he could be said to have “created” the photograph in question. However, it is interesting to consider the position as regards computer-generated works, which are recognised in section 178 of the CDPA as being works “generated by computer in circumstances such that there is no human author of the work.”
The word “computer” is not defined, but being a professional photographer we may perhaps assume that Slater’s camera was a piece of electronic equipment more sophisticated and with more processing power than any of the computers around at the time the CDPA was drafted.
Section 9(3) of the CDPA provides that “in the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.”
In Nova Productions Ltd v Mazooma Games Ltd (2006) it was held that individual frames shown on a screen when playing a computer game were computer-generated artistic works. The author of these frames was the person who had devised the rules and logic used to create them. The player of the game was not the author, because they had not contributed any artistic skill or labour.
Accordingly, this analogy could fall down as Slater did not “devise the rules and logic” used to create the photograph; it was taken by an independently-acting monkey. Slater would have to successfully argue that he “undertook the arrangements necessary for the creation of the work”. It is not clear that having one’s camera snatched by an inquisitive monkey is sufficient to meet this requirement. Had the monkey been trained, and the surroundings clearly set up and controlled by Slater, the argument may hold (slightly) more water.
There is a further issue to consider.
Back in 2011, Slater reportedly described what happened as follows:
"One of them must have accidentally knocked the camera and set it off because the sound caused a bit of a frenzy… The sound got his attention and he kept pressing it. At first it scared the rest of them away but they soon came back - it was amazing to watch. He must have taken hundreds of pictures by the time I got my camera back, but not very many were in focus. He obviously hadn't worked that out yet. I wish I could have stayed longer as he probably would have taken a full family album… Despite probably never having any contact with humans before they didn't feel threatened by our presence, and that's why I could walk with them during the day."
One might well ask whether, in not immediately regaining possession of his camera but in allowing the monkeys to take photographs, Slater commissioned the photographs from them.
Under English law the intellectual property rights in a work commissioned from a third party will likely vest in and remain the property of the third party – absent a written agreement to the contrary. This was confirmed in the recent case of Orvec International Ltd v Linfoots Ltd (2014), in which the Intellectual Property Enterprise Court rejected breach of contract claims brought by Orvec against its previous advertising agency, Linfoots, arising out of Linfoot’s supply of photographs initially created for Orvec to a third party.
If it can overcome any “qualifying person” issues, the monkey would do well to consider any principles relating to commissioned works under Indonesian law.
As things stand however, and from an English law perspective, it seems unlikely that any copyright would subsist in the photograph in question.