Copyright: No time to monkey around

Author:David Allen Green
Position:Solicitor, Preiskel & Co LLP, and legal commentator for ft.com, London, United Kingdom
Pages:14-17
 
FREE EXCERPT
2014 | 5
COPYRIGHT:
No time to monkey around
By David Alle n Green,
Solicitor, Prei skel & Co LLP,
and legal comm entator for ft.com ,
London, United Kingdom
Sometimes a news story eme rges which goes to the very basics
of the law of copyright. And, in an amusing c ontext, the following
question has been rais ed in the media: who owns the copyright
in a photograph taken by an ape? This somewhat odd q uestion
came about following a rec ent decision by Wikimedia in relation
to the following scenario. Wikimedia explained:
“A photographer left his camera unat tended in a national
park in North Sulawesi, Indonesia.
A female crested black macaq ue monkey got hold of
the camera and took a seri es of pictures, including
some self-portraits.
The pictures were featured in an on line newspaper article
and eventually posted to Commons.
We received a takedown request fro m the photographer,
claiming that he owned the copyright to the photogra phs.
We didn’t agree, so we denied the request.”
The “photographer” was repor tedly upset at this decision: “It
makes me very angr y, 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 copyr ight in such a
picture? And who, if anyone, would own the photograph? Under
UK law the position is complic ated, and is revealing about the
importance of huma n creativity in the eld of copyright.
First, we have to assume that the picture has not bee n cropped
or modied before it is publis hed. If it had been, which accord-
ing to the photographer is the case in this in stance, the person
who did the cropping of modic ation could rightly claim some
intellectual property rights in the work.
The next point to make is that, in the UK, copyri ght is a property
right. But apes and other non- human animals cannot own prop-
erty under the l aw. T his may be unfair to the poor primate, but
only natural persons (or “leg al” persons such as corporations)
can own property. This mean s the copyright owner is never
going to be the ape.
Under UK legislation, the copyright in a photograph rst belongs
to “the person who creates the work . T he key is the act of
“creation” – a person creates something w hich would not have
existed but for that act of creation. With photograp hs, this is
fairly easy to work out: it is the perso n with the camera taking
the photograph (even if that camera belo ngs to someone else).
However, the photographer does not have to be physically
present: a wildlife photographer m ay set up a trip-wire or other
sensor so that animals may be ph otographed whilst the pho-
tographer is far away. This would still involve the “creativit y” of
the photographer, who would be showing as much “sweat of
the brow” as if actually takin g the picture.
But when the picture is not par t of some human’s creative
endeavor then there may not be any mea ningful “creation” of a
work. There may not even be any “work” at a ll, for the purpose
of copyright law. As I noted in a recent article in the Finan-
cial Times (http://blogs.ft.com/david-allen-green/2014/08/07/
ape-seles-and-the-law-of-copyright/):
“It would perhaps be as if a stray cat had rub bed paint on
a canvas or a wild dog had chewed loudly at the str ings
of a Stradivarius: the result may be somethi ng which, if
it were created by a human, could quali fy to be a work
under the law of copyright; but becau se it was done by
a beast, it may not even be a “work”. The incidental use
of a human tool is legally irre levant.”
On this basis, a photograph taken by an ape wo uld not be an
artistic work for the purp ose of copyright law, just as the sound
of that very same came ra being smashed repeatedly by the
ape on a rock would not be a musica l work.
And so, the ape may well create a beautifu l photograph; but
however talented the ape, it is never going to create a work
protected by the law of copyright under UK law.
Adapted from Ape seles and the l aw of copyright rst published
at ft.co m, August 7, 2014

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