Copyright unlikely to lie with photographer unless he can prove he made significant arrangements for the photo

If an animal steals your camera and takes a photo that subsequently becomes world-famous, there’s bad news: the US Copyright Office has ruled that the picture can’t be copyrighted - so anyone can use it for free.



That means that a row between the British photographer David Slater and Techdirt, a blog that focusses on copyright issues, over who - if anyone - owns the copyright to a “monkey selfie” is settled for now: it’s not Slater.

In new guidance the USCO has ruled that only works created by a human can be copyrighted under US law, which excludes photographs and artwork created by animals or by machines without human intervention.



The statement comes after Slater complained after first Techdirt and then Wikipedia refused to remove a photograph of a macaque which Slater said was taken by the monkey.

‘Will not register works produced by nature, animals, or plants’

“Because copyright law is limited to ‘original intellectual conceptions of the author,’ the Office will refuse to register a claim if it determines that a human being did not create the work,” said the US Copyright Office in its latest compendium of practices published Tuesday. “The Office will not register works produced by nature, animals, or plants.”

The compendium specifically highlights “a photograph taken by a monkey” as an example of something that cannot be copyrighted. Don’t hope for divine intervention either: “Likewise, the office cannot register a work purportedly created by divine or supernatural beings, although the office may register a work where the application or the deposit copy states that the work was inspired by a divine spirit.”

While there is some homogenisation and understanding under the Berne Convention in copyright law between countries, not all copyright law is the same across countries. In the UK, the law around animals producing copyrightable works is similar to the US.

‘Animals cannot own copyright’

“The IPO indicates that under UK law animals cannot own copyright,” Bianca D’Orsi, spokeswoman for Intellectual Property Office told the Guardian. “However 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,” she said.

Slater has argued that he owns the copyright to the photo because although the female macaque in the picture stole the camera and took the selfie, he set up a camera on a tripod in the Indonesian forest with the correct lighting before letting the monkeys press the buttons on it after three days with them.

Iain Connor a partner in the intellectual property department of Pinsent Masons, said: “Based on first principles, if you give a monkey a camera, and you don’t exercise any control over the monkey, if it then presses the button the monkey is the author.”

However, the law in the UK is not quite as straightforward, as the author doesn’t necessarily own the copyright.

For instance, in the film industry the cameraman filming the actors on screen, despite being the “author” of the recording, does not own the copyright of the film. It comes down to who provided the creative effort or significant arrangements. In the case of movies it would be the director or the producer, although often it is ultimately the people who put the money into the project.

It is the amount of effort, arrangement or creative input that is made, which determines copyright.

‘It’s not every day you put a Rolls Royce in a swimming pool’

Oasis Album Cover - Be Here Now. Oasis/Creation records

Using the iconic album cover for Oasis’s Be Here Now as an example, which depicted a Rolls Royce in a swimming pool along with various clocks and a gramophone, Connor explained: “If you’re setting up a photo that’s so wacky and crazy – it’s not every day you put a Rolls Royce in a swimming pool – then you as the author of the artistic work are the owner of all the pictures taken of that setup, because you’ve made the arrangements.”

But in the case of the monkey taking the camera and snapping a picture of itself, it’s harder for the photographer to argue copyright ownership.

“If you have a monkey taking a selfie and the monkey’s face fills the frame it’s much harder to prove,” said Connor. “You could say you put the camera in the hands of the monkey so you have taken some creative steps and therefore own the copyright. The photographer will have to argue in some way that it was his creative effort that is so imbued in that selfie that invests the copyright in the photographer.”

Monkey business

As the law stands in the UK and US, if Slater had set a timer or a trip switch or something else that actively triggered the camera on purpose, he would own the copyright of the photo as it would be the product of his conscious mind.

Ownership could also be altered by performing significant modifications to the photo, but the level of work required and the proof of that work goes far beyond simple touch-ups like the removal of red eye or colour balancing an image.

“My view as to what a sensible approach to this would be if you own the camera, you’ve effectively made the arrangements for that picture,” said Connor. “If it’s an animal that presses the button it should be the owner of the camera that owns the copyright to that photo.”

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