In brief

  • This entertaining story is a timely reminder that copyright ownership is not always straightforward.
  • A wildlife photographer’s camera was used by a monkey to take some self-portrait ‘selfie’ photographs. The photographer sold the images which went viral and ended up on Wikipedia. 
  • The photographer’s requests to have the photos taken down from Wikipedia were refused on the basis that copyright did not subsist in the photos as they lacked a human author.

Background

In 2011, wildlife photographer David Slater was visiting the Indonesian island of Sulawesi, when a black macaque monkey hijacked his camera and unwittingly took some self-portrait photographs, popularly known as ‘selfies’.1 Mr Slater sold the photographs at the time, but they have recently returned to the headlines around the world following his request to have the images removed from Wikipedia.2

Wikimedia Foundation (Wikimedia), the organisation that hosts Wikipedia and Wikimedia Commons, has refused to take the images down. There have been varying reports of Wikimedia’s grounds for refusing, with Mr Slater initially claiming that Wikimedia refused to take the images down as copyright in them was owned by the monkey.3 Wikimedia has corrected these reports and stated that under US law there is no copyright in the images because there is no human author.4  

How might this dispute have been dealt with under Australian copyright law?

General rule

Although this is an amusing story, it is a timely reminder that copyright ownership is not always straightforward. Under the Australian Copyright Act 1968 (Cth), subject to certain exceptions and contract, the first owner of copyright in a work such as a photograph, drawing or literary piece is the author.5 In the case of a photograph, the author is ‘the person who took the photograph’.6

The copyright owner has the exclusive right, amongst other things, to reproduce the work and is able to prevent others from doing so.

Exceptions to the general rule

The Copyright Act sets out some exceptions to this general ownership rule. For example, copyright in literary, dramatic, artistic or musical works that are made in the course of the author’s employment will be owned by the employer, rather than the employee.7

Agreements

Ownership of copyright can also be determined by contract, with parties agreeing to assign copyright in an existing work. Parties can also enter into a written agreement before a work is created to assign any future copyright.8

Application to the monkey selfie

Returning to the monkey selfie, as the monkey took the photograph there is no human author and copyright would not subsist under Australian law. Although Mr Slater may have been responsible for setting up the camera and perhaps even hoped for the monkey to interact with his camera, it is an established principle of copyright law that protection is not given to ideas but rather to the material expression of those ideas.9 The outcome may have been different if, for example, Mr Slater had set a timer or trigger switch to take the photograph, as he could then have argued that he was the author.

This does not leave Mr Slater without any rights at all over the photographs – he probably relied on his property rights in the image files themselves when selling the photographs in 2011. However without copyright protection, Mr Slater has limited recourse to prevent others from reproducing the images now that they have been published. He also has no ability to license the photographs and receive royalties. Mr Slater already estimates that he has ‘lost’ £10,000 of income from the free distribution of the images.10

Application to social media photographs

The monkey photos are not the only selfies to dominate headlines this year. At the Academy Awards in March, the infamous ‘Oscars selfie’ was so popular it reportedly ‘crashed’ Twitter. The photograph was taken by actor Bradley Cooper of himself and 13 other celebrities including Ellen DeGeneres, Meryl Streep, Angelina Jolie and Kevin Spacey.11 The selfie was later rumoured to be part of a pre-planned $20 million sponsorship deal between Samsung and ABC, the US television network hosting the Oscars, to promote the Samsung Galaxy smartphone.12

On the above principles, in the absence of an agreement to the contrary, Bradley Cooper would be the ‘author’ and owner of copyright in the photograph under Australian law. While in that case, Samsung probably received more publicity out of that stunt than it anticipated, had it wanted to exercise control over the distribution of the photo, it could only have done so with an assignment of copyright from Bradley Cooper.

At a time when social media photos in particular can be worth millions, copyright protection should not be forgotten or left to chance.