Monday, 20 November 2017

No Monkey Business – who owns a selfie taken by an animal?

No Monkey Business – who owns a selfie taken by an animal?

Naruto – a Macaque in Indonesia.  The animal took this selfie with a photographer’s camera.  David Slater via Wikimedia Commons

Many of us see animals – and particularly domestic pets – as more than just “things”.  However, in South African law, an animal is regarded as an object – akin to a mobile phone or motor vehicle.  A person cannot murder an animal, regardless of how cruel or despicable their conduct; and while this issue is certainly a conversation we should be having as an advanced, modern society, it is certain, sadly, that animals enjoy very little legal protection and little in the way of legal rights.

Moreover, in terms of the Copyright Act 1978, copyright ownership is conferred on works of which the author is a person – either a natural person or a juristic person (like a company).  Consequently, in terms of our law as it stands, it would seem that animals cannot own the copyright to any images taken (whether taken intentionally – via training even, or by accident).

This is the backdrop to the interesting story involving Naruto, an Indonesian monkey.  In 2011, photographer David Slater travelled to Indonesia to document a troop of crested black macaques.  A six-year-old male took a series of selfies with Slater’s camera – this was the start of a complicated (and no doubt costly) legal fight to determine ownership of copyright.
In about 2014, Wikipedia and Techdirt were asked by the photographer to take the photo down – both refused, essentially claiming the photo did not have any copyright as a non-human took the photo.   Subsequently, in 2015, the People for the Ethical Treatment of Animals (PETA) filed a suit against Slater claiming that the monkey was the correct owner.

Ultimately, the parties reached settlement in September 2017 – Slater has agreed to donate 25% of any future income from the photo to charities dedicated to protecting crested macaques in Indonesia.  Further, the parties (PETA and Slater) asked the 9th US circuit court of appeals to dismiss the case and throw out a lower court decision that said animals cannot own copyrights.

Some feel that this settlement is nonsensical – the law is clear in the United States (via B Wassom): “Copyrights are owned by human creators. And since this photo resulted from an entirely non-human process, it belongs in the public domain.”