A ‘selfie’ photograph taken by a grinning female crested black macaque monkey,  which went viral this summer, has caused controversy and raised serious questions  about the ownership of copyright in photographs.

In the UAE, the position regarding copyright ownership is not what many expect.  Harriet Balloch explains further.

The photograph

The photograph is a ‘selfie’ which was taken by a monkey in a national park in North Sulawesi, Indonesia in 2011, using the camera equipment of David Slater, a British photographer. The ‘selfie’ is now the subject of  a dispute between Mr Slater and Wikimedia, the organisation behind the Wikipedia online encyclopaedia.

Wikimedia added the  photograph to its Wikimedia   Commons platform, which  provides a collection of images that are free for public use.  However, instead of crediting Mr Slater as the photographer,  Wikimedia stated that the photograph is in the ‘public  domain’ (which means that it is not protected by copyright)  “… because as the work of a non-human animal, it has no human  author in whom copyright is vested”.

Mr Slater has issued take-down requests to Wikimedia  asking it to remove the photograph from Wikimedia  Commons or pay a licence fee for its use on the basis that  he owns copyright in the iconic photograph. Wikimedia  has denied the take-down requests and has responded by  arguing that copyright does not subsist in the photograph  because it was taken by an animal.

This dispute has sparked significant interest and debate in the press about the ownership of materials created by ‘non-humans’.

Ownership of copyright in the UAE

According to the Copyright Law (UAE Federal Law No. 7 of 2002), copyright in a photograph is owned by the “author”. In turn, an “author” is defined as the “person who creates” the photograph.

Article 1 of the Copyright Law requires an author to be a person. As the monkey is an animal, it does not fall within the definition of an author. The author of a copyright work is the focus around which the economic and moral rights stem, including, for example, the duration of protection of a copyright work (which is linked to the life of the  author). Without an author, it seems that there is no owner of copyright in the ‘selfie’ under UAE law and that the photograph is indeed in the ‘public domain’, free for the public to use.

The position appears to be the same in the UK and the US. Specifically, the ‘selfie’ seems to fail to qualify for copyright protection because it was not created by an ‘author’ as defined under the provisions of the relevant laws. Indeed, the US Copyright Office has recently confirmed that it will not issue copyright certificates for works created by animals, such as photographs taken by monkeys or paintings created by elephants.

So, if the monkey doesn’t own copyright in the photograph, does this mean that the copyright owner is Mr Slater? Under UAE law, the answer is possibly.

In most circumstances, it will be a straightforward task to determine the person who created the photograph; it will be the person who operated the camera (ie the photographer).

However, sometimes more than one person may be involved in the creation of a photograph. Specifically, one person might be responsible for the composition of the photograph (ie arranging the subjects, props and lighting) and another person might operate the camera. In these circumstances, the photograph may have a single author (the individual who was responsible for the overall creation of the photograph). Alternatively, depending on the circumstances, the photograph may have joint authors.

By its very definition, a ‘selfie’ is a self-portrait photograph. On this occasion, the ‘selfie’ was taken by the monkey and not by Mr Slater. Apparently the mischievous monkey positioned herself directly in front of the camera, which was fixed on a tripod, and repeatedly pushed the button to release the shutter, which resulted in hundreds of photographs being taken.

In any event, Mr Slater may be able to argue that he was the person that created the photograph and, therefore, he should be considered the author of the ‘selfie’. Specifically, Mr Slater spent a significant amount of time with the monkeys, building up their trust, showing them how to use the camera and setting up the camera ready for the monkeys to interact with. According to his website, Mr Slater said that he:

… put my camera on a tripod with a very wide angle lens,  settings configured such as predictive autofocus, motorwind, even  a flashgun, to give me a chance of a facial close up if they were to approach again for a play …. I duly moved away and bingo, they moved in … pressing the buttons and … I was then to witness one of the funniest things ever as they grinned, grimaced and bared teeth at themselves in the reflection of the large glassy lens. …They played with the camera until of course some images were inevitably taken! I had one hand on the tripod when this was going on …

Although Mr Slater did not take the ‘selfie’, the courts in the UAE may be sympathetic that, without him, none of this ‘monkey business’ would have happened and, therefore, he should be considered to be the “person that created” the photograph. Specifically, his aim was to create fantastic photographs of these critically endangered monkeys and, through his efforts, he achieved this.

If the reports in the press are accurate, Mr Slater will be asking the Courts in the UK to determine whether he is the owner of copyright in the photograph. The success of Mr Slater’s claim is likely to depend on his ability to demonstrate a sufficient level of input into the creation of this ‘selfie’ and, specifically, whether he can persuade the Court that he was the “person that created” the photograph.

Whether or not Mr Slater will succeed with a claim for copyright infringement against Wikimedia is yet to be seen.However, as this situation demonstrates, with increased access to easy-to-use technology, the boundaries of traditional IP laws will continue to be pushed.