Ape selfies and the law of copyright

David Allen Green Author alerts | Aug 07 13:58 | 21 | Share

An ape takes a selfie: but who owns the copyright in the photograph?
This question is in the news because of a decision contained in the recent Wikimedia Foundation
Transparency Report:
A photographer left his camera unattended in a national park in North Sulawesi,
Indonesia.
A female crested black macaque monkey got ahold 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 didnt agree, so we denied the request.
The photographer was David Slater from Gloucester in England, and he is reported as upset at
this decision. He was quoted yesterday as saying:
They have denied my request to take off their site.
The photograph from 2011 got worldwide coverage because the monkey took it but
some claimed because the monkey took the pictures she owns the copyright.
It makes me very angry, Im a professional photographer it costs me over 2,000 to do
the trip. Its my livelihood.
You take 20,000 shots to get one image that sells, it was potentially a good earner for
me, Ive lost over 10,000 because of it.
So who, if anyone, owns such a photograph?
As I do not know the full facts of what happened to Mr Slater and his camera that day in Indonesia,
I cannot comment on this particular case. Views even differ as to whether it was an ape or a monkey
(some call the macaque an ape).
But there are some general points one can perhaps make about such selfies and intellectual
property; so let us consider a hypothetical ape taking a selfie, and let us assume the picture is not
then cropped or otherwise substantially modified before it is published (else the person doing the
cropping or modification may claim some intellectual property rights). What would be the legal
position?
First, the copyright owner is never going to be the ape, at least not under the law of the United
Kingdom. This may be unfair, but only natural or legal persons (such as corporations) can own

property. Even those lucky pets who are bequeathed a fortune by some eccentric millionaire will
find their greedy paws do not get on the money: the usual arrangement is that it is held for their
benefit by some human or corporate trustee.
So, if not the ape, then who? Here the position is less clear and we have to look at the letter of the
law.
The law of copyright is complex and sometimes counter-intuitive, but it is an area of law which in
the UK is entirely the creation of statute. What this means is that unless something fits squarely
within the statutory definitions of the applicable legislation here the Copyright, Designs and
Patents Act 1988 then it does not have the protection of the law of copyright. And indeed many
things, from an arrangement for an album cover to certain film editing techniques, have failed to be
deemed by the courts to be works which can be subject to the law of copyright.
There is, of course, no doubt that a photograph is capable of being something in which copyright
can subsist: section 4(2)(b) of the 1988 Act defines a photograph as a recording of light or other
radiation on any medium on which an image is produced or from which an image may by any
means be produced, and which is not part of a film. Section 4(1)(a) in turn defines an artistic
work as a a graphic work, photograph, sculpture or collage, irrespective of artistic quality.
But then it becomes more tricky. Section 11 of the Act provides that the author of a work is the
first owner of any copyright in it. Who is the author? Well, under section 9(1), the author is the
person who creates the work. The rest of section 9 does not expand on who the creator of a
photograph is, but as a matter of common sense and practice, it is normally the person physically
standing in a certain place and manually taking a picture.
However, this sensible approach will not cover every situation. For example, a nature photographer
may set up a trip-wire or other sensor so that animals may be photographed whilst the photographer
is far away. In such a case, the photographer would surely still be the creator of the photograph
even though it was the passing animal that effectively pressed the button on the camera. As a
copyright lawyer would describe it, the nature photographer setting up the shot is showing as much
sweat of the brow as if he or she was taking the picture themselves.
And so, by analogy, if the same photographer handed a camera to an ape before patiently goading it
so that an amusing selfie would be taken, then this presumably would also be a copyright work of
the photographer. The photograph would still be the result of an exercise of human skill.
But what happens if the picture is not part of some humans creative endeavour that an ape has, in
fact, simply snatched the camera and taken an amusing selfie?
Here the question is whether there is any meaningful creation of a work or even if there is a
work at all. 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 was 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: the
resulting circumstance is no more a human creation than an admirable birds nest or a pleasing
formation of flying geese.
As such, an unprompted but memorable ape selfie will 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. An infinite number of monkeys on an infinite number of
typewriters may create something as great as the works of Shakespeare, but they would never have
any proprietary rights over the literature they had created.
A thing made by an animal may well be appreciated by humans, but not everything liked by humans
can be bought and sold as a chattel or as an intellectual property right. And so when such things do
occur, we should not seek to monetise them as some form of property; we should instead realise
how lucky we are that such wonderful things exist at all.

The writer is a City of London solicitor and a journalist. He won Mainstream Media Blogger of
the Year at the 2013 Comment Awards.