Monkey Business

According to the South African Copyright Act No. 98 of 1978 the owner of the copyright in a photograph is defined as the person responsible for the composition of the photograph.

However, what happens if an animal, rather than a person, is responsible for the composition of the photo? Who is then considered the owner of the copyright?

In 2011 a British wildlife photographer, David J Slater, left his camera unattended in a national park in North Sulawesi, Indonesia. A female crested black macaque monkey, got hold of the camera and managed to take a rather spectacular self-portrait, or rather a “selfie”.

The photo was published in numerous magazines and websites and was eventually placed on a website named Wikimedia Commons, which contains a collection of photographs which are open for public use. Slater, considering himself the rightful owner, requested the removal of the photo from the website. However, his request was denied.  Wikimedia Foundation argued that the monkey took the photograph and since monkeys can’t hold copyright, the image is in the public domain.

Since in most, if not all countries, the right to copyright ownership is limited to human beings, the argument of Wikimedia Foundation seems to be valid. According to the UK’s Copyright, Designs and Patents Act 1988 the copyright in a photograph is owned by the person who creates it. The US Copyright Office has advised that, for work to be copyrightable, it must “owe its origin to a human being”.

Subsequently a legal battle between Slater and the Wikimedia Foundation ensued. Slater argued that he owns the rights to the image and the royalties which comes from the publishing thereof, because he set up the equipment which enabled the monkey to press the button and take the photograph.

However, The US Copyright Office settled the matter. It said that images taken by animals, including the 2011 primate self-shot, could not be registered for copyright by a human. Likewise the Office said that it will not register works produced by nature, animals or plants. The image therefore forms part of the public domain.

Slater might have had a reasonable argument, if the monkey had taken the photo on a command from Slater, that the artistic expression of the photo belonged to him and that the monkey was merely his assistant. However, since the monkey took the photo of her own volition, this argument was not tested.

It would seem that there is no space for so-called monkey business when it comes to copyright.

Monty Rademeyer – Partner
monty@rademeyer.co.za