Wed 19 Aug 2020

Copyright in photographs - not such monkey business

The Copyright, Designs and Patent Act 1988 includes photographs in the definition of an "Artistic Work". Copyright is an intellectual property right which subsists in photos. 

The owner of the copyright work has the right to copy, rent, lend and adapt the work. The individual who created the work owns the copyright in the work, unless the work was created as part of the individual's duties as an employee (in the UK the individual's employer will own the copyright in the work).

Back in 2011, ownership in copyright of a photo was at the heart of the "monkey selfie copyright dispute". A series of "selfies" taken by Celebes crested macaques using equipment belonging to British nature photographer David Slater were uploaded to Wikimedia Commons, a site which only accepts media available under a free content license or in the public domain. The rationale for the upload was that the photographs were in the public domain as they were the work of a non-human animal and the copyright did not belong to David Slater. Slater requested that the Wikimedia Foundation remove the photos but the Foundation still determined that the images were in the public domain and denied Slater's request.

The dispute was closely followed by Techdirt, which also posted a monkey selfie on the basis that the image was in the public domain. Slater argued that he had made significant contributions to the monkey selfies in that he set the camera up, framed the shot and got the exposure right. All the monkey had to do was press the button.

Much debate followed the publication of the selfies. The UK Intellectual Property Office was quoted as saying that, while animals cannot own copyright under UK law, "the question as to whether the photographer owns copyright is more complex. It depends on whether the photographer has made a creative contribution to the work and this is a decision which must be made by the courts." Slater told the BBC news that he had suffered financial loss as a result of the pictures being available on Wikimedia Commons, and by July 2017 he was reported to be unable to pay his legal fees.

In 2018, Andres Guadamuz, a senior lecturer in Intellectual Property Law at the University of Sussex, wrote an article about the case published in WIPO magazine. In the article, Mr Guadamuz referred to another "monkey selfie" taken when wildlife photographer Ian Wood travelled to Borneo and encountered a group of orangutans. Wood left his camera in a spot where the orangutans could take selfies, but without the input in setting up the shots that Slater claimed with his monkey selfies. The quality of the selfies from Wood's photo shoot was poor compared with those from Slater's shoot, lending weight to Slater's argument that he had made a significant contribution to the selfie from his shoot. In Mr Guadamuz's opinion, Slater might have done enough through his input in setting up the shot to be awarded copyright in the selfies.

If you are an aspiring photographer and you want to protect your rights in your work, this can be difficult to police in a world where the internet, smart phones and social media can make it easy for photos to be downloaded and used by other individuals without obtaining a license to the copyright in the photo. We always recommend that your work should have a copyright notice such as © 2020 "Your company" or "name". This will act as a deterrent to copying your photo, and if someone does use the photo without your permission then the copyright infringer cannot claim that he or she did not know the image was copyrighted. Copyright works can be registered but this is mainly seen in the US (and you have to pay a fee). Registering copyright is not necessary for copyright protection (as per above copyright is an automatic right which resides in the creator of the work or the creator's employer, as the case may be). It is also worth noting that "hyperlinking" to a photograph which is freely available on a website is not an infringing act. This has frustrated copyright owners as they are unable to take action against entities which link to their unlicensed content and make access to this content much easier.

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