Copyright: No Time To Monkey Around
By David Allen Green, Solicitor, Preiskel & Co LLP, and legal commentator for ft.com, London, United Kingdom
Adapted from Ape selfies and the law of copyright first published at ft.com, August 7, 2014
Sometimes a news story emerges which goes to the very basics of the law of copyright. And, in an amusing context, the following question has been raised in the media: who owns the copyright in a photograph taken by an ape? This somewhat odd question came about following a recent decision by Wikimedia in relation to the following scenario.
Wikimedia explained:
A photographer left his camera unattended in a national park in North Sulawesi, Indonesia.
A female crested black macaque monkey got hold of the camera and took a series of pictures, including some self-portraits.
The pictures were featured in an online newspaper article and eventually posted to Commons.
We received a takedown request from the photographer, claiming that he owned the copyright to the photographs.
We didn’t agree, so we denied the request.
The photographer was reportedly upset at this decision: “It makes me very angry, I’m a professional photographer – it cost me over £2,000 to do the trip. It’s my livelihood”.
So why would a photographer not own the copyright in such a picture? And who, if anyone, would own the photograph? Under UK law the position is complicated, and is revealing about the importance of human creativity in the field of copyright.
First, we have to assume that the picture has not been cropped or modified before it is published. If it had been, which according to the photographer is the case in this instance, the person who did the cropping or modification could rightly claim some intellectual property rights in the work.
The next point to make is that, in the UK, copyright is a property right. But apes and other non-human animals cannot own property under the law. This may be unfair to the poor primate, but only natural persons (or “legal” persons such as corporations) can own property. This means the copyright owner is never going to be the ape.
Under UK legislation, the copyright in a photograph first belongs to “the person who creates the work”. The key is the act of “creation” – a person creates something which would not have existed but for that act of creation. With photographs, this is fairly easy to work out: it is the person with the camera taking the photograph (even if that camera belongs to someone else).
However, the photographer does not have to be physically present: a wildlife photographer may set up a trip-wire or other sensor so that animals may be photographed whilst the photographer is far away. This would still involve the “creativity” of the photographer, who would be showing as much “sweat of the brow” as if actually taking the picture.
But when the picture is not part of some human’s creative endeavour then there may not be any meaningful “creation” of a work. There may not even be any “work” at all, for the purpose of copyright law. As I noted in a recent article in the Financial Times:
"It would perhaps be as if a stray cat had rubbed paint on a canvas or a wild dog had chewed loudly at the strings of a Stradivarius: the result may be something which, if it were created by a human, could qualify to be a work under the law of copyright; but because it was done by a beast, it may not even be a “work”. The incidental use of a human tool is legally irrelevant."
On this basis, a photograph taken by an ape would not be an artistic work for the purpose of copyright law, just as the sound of that very same camera being smashed repeatedly by the ape on a rock would not be a musical work.
And so, the ape may well create a beautiful photograph; but however talented the ape, it is never going to create a work protected by the law of copyright under UK law.
International copyright law: The Berne Convention
Copyright, like other intellectual property rights, is territorial in nature meaning that there are differences in the copyright laws of individual countries. However, various international agreements, including the Berne Convention for the Protection of Literary and Artistic Works, concluded in 1883 and last revised in 1971, mean that there is a certain coherence in copyright law from one country to another.
The Berne Convention sets minimum standards of international protection in relation to, for example, the types of works protected, the duration of protection and the scope of limitations and exceptions. It establishes the principle of “national treatment” whereby works emerging from one signatory country are protected in the same way as the works of nationals in other signatory countries. It also upholds the principle of “automatic protection” whereby copyright exists as soon as a work is fixed in some tangible way (e.g. written or recorded) without any formal requirement to register it, although some national laws allow for the voluntary registration of works.
The original creators of works protected by copyright, and their heirs, have certain basic rights. They hold the exclusive right to use or authorize others to use the work on agreed terms. The creator of a work can prohibit or authorize:
- its reproduction in various forms, such as printed publication or sound recording;
- its public performance, as in a play or musical work;
- its recording;
- its broadcast (by radio, cable or satellite);
- its translation into other languages or its adaptation.
Under the Berne Convention, these economic rights are limited to a minimum of 50 years after the creator’s death. National laws may establish longer time-limits. Copyright protection also includes moral rights which involve the right to claim authorship of a work and the right to oppose changes to it that could harm the creator’s reputation.
The Berne Convention does not define the term “author” or the choice of law to determine the initial owner of rights. However, references to “the author” in the Convention relate to a physical person who is the intellectual creator of a work.
Some national copyright laws also recognize the authorship of legal entities – such as employers, producers, etc. – who take the initiative to create and the responsibility for creating a work (and who, in general, by determining the objectives and features of the work to be created, also have an impact (direct or indirect) on its nature, style and comments.
The WIPO Magazine is intended to help broaden public understanding of intellectual property and of WIPO’s work, and is not an official document of WIPO. The designations employed and the presentation of material throughout this publication do not imply the expression of any opinion whatsoever on the part of WIPO concerning the legal status of any country, territory or area or of its authorities, or concerning the delimitation of its frontiers or boundaries. This publication is not intended to reflect the views of the Member States or the WIPO Secretariat. The mention of specific companies or products of manufacturers does not imply that they are endorsed or recommended by WIPO in preference to others of a similar nature that are not mentioned.