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Copyright in that monkey ‘selfie’ —  a banana skin?Copyright in that monkey ‘selfie’ — a banana skin?

» Posted on: 14 August 2014

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Well, if ever there was a story to get copyright into mainstream news!

You'll probably already be familiar with the now infamous monkey ‘selfie’ row between Wikimedia and Mr Slater, a British photographer. In a nutshell, Mr Slater travelled to Indonesia in 2011 where he spent time following a group of macaques. For reasons yet to be explained, one monkey got hold of Mr Slater's camera and became ‘trigger happy’ with the shutter taking, amongst others, a perfect head-on ‘selfie’ of itself grinning.

Wikimedia have repeatedly used the image and have responded to Mr Slater's complaints by suggesting he does not own copyright in the photograph because he did not take it — the (not so camera shy) monkey did! They therefore claim, not that the monkey owns copyright, but that the work is not subject to copyright protection at all.

The issue is sparking interesting discussion online with both lawyers, journalists (and no doubt high-tech monkeys) alike. But on a serious note, it does raise interesting points in law.

As for the UK, a photograph can be protected by copyright in the same way as a piece of art providing it is original, in the sense that it is created by the author using his own skill and effort and is not simply a copy of another work. It is fair to say the monkey ‘selfie’ is quite unique, and has taken some skill and effort — whether on the part of Mr Slater or the macaque. But who is the ‘author’, if anyone?

The author of artistic work, such as a photograph, is the person who creates it. Clearly there is certainly a strong argument to suggest the monkey is not a ‘person’ here (in the legal or natural sense). However, even if that was the case, it should be remembered that for other types of entrepreneurial copyright work, including films, sound recordings and broadcasts, the ‘author’ is often not the person pushing the button to record or transmit. Instead, for films and sound recordings, the author is often the person who made the arrangements necessary for the work to be produced. It is therefore easy to sympathise with Mr Slater's position.

Whilst it is unclear whether the ‘monkey’ case would ever be brought before the courts, the principle of the story could certainly raise its head again in the future. What would you be arguing if someone uses your camera to take a picture of you and/or another in a ‘selfie’ which could have real commercial value?

Taylors' Intellectual Property team, led by Tony Catterall, is recognised nationally and internationally for its expertise and experience in protecting and enforcing the rights of designers, particularly in the textiles, fashion and home furnishings sectors. It has won many notable and key cases in the High Court, Court of Appeal and Supreme Court against major corporates. Taylors is the only North West-based firm to have been appointed as a Legal Affiliate to the national organisation, Anti-Copying in Design (ACID).

If you have any queries, please do not hesitate to contact Tony Catterall, Head of our Intellectual Property team, on 0844 8000 263 or via email tony.catterall@taylors.co.uk.

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