Monkeying around – Naruto v. David John Slater – can an animal possess the copyright to an image

A recent case of man vs. animal has brought into debate whether or not an animal can possess the copyright to an image. The case of Naruto v. David John Slater et al. has caused this debate after the image of the ‘monkey selfie’ went viral in 2011.

David Slater travelled to Indonesia to photograph macaques in the national park of North Sulawesi. On his second day in the national park, Slater followed a troupe of 25 monkeys to observe and photograph their natural behaviour. He noticed that the monkeys were curious in him and his equipment so thought he would set up a camera with a self-timer to capture close up photos. This camera was briefly stolen and quickly recovered but did not result in the selfie. Slater then set up another camera on a tripod, which he had purposefully set up with a wide angle lens, and configured settings. He then backed away from the camera and allowed the monkeys to examine the equipment which resulted in the monkeys taking selfies as “they grinned, grimaced and bared teeth at themselves in the reflection of the large glassy lens” (Slater, 2011). These photos included the ‘Monkey Selfie’ which went viral instantly due to the toothy grin on the primate’s face.

But, who owns the rights to the image? Is it the monkey because it pressed the shutter button or is it Slater as the camera had been set up by him? The dispute initially arose in 2014 between Slater and Wikipedia Commons as the photo was freely available on Wikipedia Commons and it was asserted that the photo had no copyright owner. Slater was unsuccessful in this argument and the photo remained in the public domain. However, Slater continued to contest this decision, as the photo had come from his camera, so he continued to claim the rights to the photo. Then in September 2015, PETA (People for the Ethical Treatment of Animals) filed a law suit in the US Court of Appeals against Slater to try and grant the rights of the photos to Naruto, the macaque who purportedly had taken the selfie. Slater contests that PETA have even identified the right monkey, arguing that the monkey in the selfie is female and of a different age to Naruto – a male 6 year old. Many of the opinions online have been presented from the perspective of the US’ judicial system, but Slater is a British national and the photographs were taken in Indonesia, so how would UK copyright law be used in this situation?

The UK Intellectual Property Office  has provided guidelines in determining the ownership of copyright for a photo and has said that “in instances where a person has arranged equipment and made artistic decisions prior to taking a photo, but wasn’t the one to press the trigger, the person making the arrangements could own the copyright, an example of this could be where a photographer has made the creative choices in setting up a shot, but got an assistant to actually press the trigger” (IPO notice no.1/2014, 2014), and have also mentioned that an animal cannot own the copyright to an image or art that it has created, but that the image or art is in the public domain.

In January 2016, a US judge dismissed the case on the basis that animals cannot sue for copyright, but did not resolve the question of whether Slater owns the copyright of the photo. What would have happened if Naruto had been granted ownership of the copyright? Would this have impacted on companies who have used photos of animals in promotional materials, especially if animals were then required to sign model releases!

Briffa Comment

Some procedural take-away points relevant to copyright in relation to digital images, photographs and the internet:

Know who owns the copyright of the image. If someone takes a photo as a part of their employment, then the normal position is that the copyright in the image belongs to the employer. However, if the photographer is a freelancer then the automatic presumption would be that the photographer as the author of the photograph is the owner of the copyright in it. In this case the photographer could then choose to licence their work to a person or organisation or assign (transfer) the copyright to another party.
Know when the image or photo was created and keep records detailing this. In the UK and US the copyright in images lasts for the life of the creator plus 70 years from the end of the calendar year of their death.
Check if permission is required to use an image or photo. In most cases if the copyright has expired on the photo then permission is not required. There are some exceptions as to whether permission is required, for example, if the image or photo is being used for private study or non-commercial research, although this does not apply to all photographs.
If permission is required contact the copyright owner to try to obtain it. If permission is not given or the copyright owner cannot be contacted consider using an alternative image. If you cannot contact the owner after thorough searching, it may be possible to obtain an orphan works licence from the UK Intellectual Property Office.
The copyright symbol ©: this symbol does not have to be visible on an image or caption for the image to still be copyrighted.
Images on the internet: the majority of images on the internet are likely to be protected by copyright, so it is advisable not to use them unless you have gained the correct permissions.

Briffa advises on all areas of copyright law (contentious and non-contentious) as well as other areas of intellectual property and commercial law. If you have questions regarding any of the above or require advice on licensing or assigning your intellectual property or taking action if someone is infringing your intellectual property rights please do get in touch at info@briffa.com.

Authors: Georgina Tall