Copyright

SpicyIP Tidbit: Monkeying around with the Public Domain & Copyright


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IP enthusiasts across the world are having an absolute field day with the recent Wikipedia monkey copyright controversy! For those not in the know yet, even as some humans are having trouble taking pictures of themselves, or “selfies” as they are now known [Exhibit A: Usain Bolt fan’s selfie fails, as camera faces wrong way], back in 2011, a rather handsome black macaca nigra monkey based in Indonesia swiped a traveling British photographer’s camera and then proceeded to snap a whole set of pictures including the selfie above. The controversy now is that Wikipedia, which has put up the above picture in their Wikipedia commons, has refused to comply with a takedown notice sent by David Slater, the British photographer, stating that they disagreed with his claim to having a copyright over the photograph.

While the legal technicalities here are bound to be fascinating and I’d love to be in a court to hear them, that’s a hotbed of issues that I won’t try to untangle for now. But for our readers who’d like to think through them, here are some of the issues they can ponder over:

Should a monkey be able to claim authorship? Is there even a purpose in giving animals IP rights? Will this incentivize them to create more?
Has the photographer done anything that makes him deserve the copyright title – in the form of setting up the equipment making it possible for the monkey to take the selfies?
An Indonesian monkey, a British photographer and (presumably) American servers – which jurisdiction should be considered anyway?
Can a monkey be termed a “person”, as copyright legislations tend to require for authorship? (Let’s not forget that in India at least, the concept of a non corporate, non-human person with rights certainly does exist!).
And most importantly, does the existence of this photo necessitate an owner at all? Could it not simply be in the public domain?

[Edit: For the record though, I have to admit that I’d love for a court to grant the monkey the copyright, and then see some self proclaimed monkey-whisperer take everyone else to court for infringement!]

Swaraj Paul Barooah

Swaraj Paul Barooah

Follow @swarajpb Swaraj has a deep interest in IP, Innovation and Information policy, especially when they involve issues relating to Access to Knowledge, Innovation incentive mechanisms, Digital Freedoms, Open Access, Education, Health and Development. After his BA, LLB (hons) from Nalsar Univ of Law, Hyderabad, he went on to do his LLM from UC Berkeley in 2010. He is now pursuing his J.S.D. degree from UC Berkeley where he is focusing on Drug Innovation Policy and Access to Medicines. Aside from SpicyIP, he is also engaged as a consultant on various IP matters, and is a visiting faculty member at Nalsar Univ of Law. He is also in the process of starting up a New Delhi based "IP, Innovation & Information Policy" focused think-tank.

5 comments.

  1. AvatarNandini

    What about looking at it like succession? If there is no author because there is no “person” to claim authorship, then the next best line of succession would go to who the camera belongs to from which the photograph was taken?? But if we do not look at it from just a copyright perspective – but as to owns the photograph ( the photographer would as it is his camera and he could then potentially exercise his personal right over it…. Just as how one would over a painting which owns but may not necessarily have painted themselves. These are just thoughts

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  2. AvatarRahul

    It is personal property of the photographer. Why should it be, as you said “most importantly”, in public domain? In India, it would’ve definitely gone into public domain not likely in the UK unless a vague and undefined “public interest” bug bit them too. Also, this photograph serves no “public interest”. It does serve private interest of the photographer – since he can make money from the newspapers and websites who attracted clicks on their pages because of this selfie apparently taken by his camera and therefore, which is his property.

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  3. Avatarvanditta malhotra hegde

    If the monkey was to fight this litigation, we will soon have a “person” claiming ownership of the monkey as its pet and take away all the proceeds…all in all a good laugh! Let’s see what the lawmakers do!

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  4. AvatarNirmalatha Ramesh Kanna

    The basic ingredient of the copyright law is to ascertain whether a person has bestowed his skill, labour, judgment and capital in any work to assert it as his original work. In the present case the photographer has bestowed all the above as he had the skill to make the monkey take a picture of itself rather than the monkey destroying the camera. The second point is labor; the photographer has taken risk to travel to such places to get such as photo. The third point is the photographer has applied his mind (Judgment) and has taken pains to search such a place to take photos of animals. The fourth point is the photographer has put in huge lots of money to buy the equipments (camera). Hence it is obvious that the photographer is the owner of the original work and has every right to restrain others from copying the same.
    Nirmalatha Ramesh Kanna,
    Advocate, Chennai

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  5. AvatarSagar Godbole

    Section 2(d)(iv) read with section 17 makes it clear that the person clicking a photograph is its author and the owner of the copyright so long as the photograph is not clicked as another person’s employee or upon being commissioned by another to click it.

    Thus the photographer definitely does not own the copyright in the selfie as per the law as it stands today.

    The monkey could have copyright only if it is proved to be a person or person definition widened to include non-human persons. (However, non human persons category has no legal standing as of now)

    However, a possible solution could be animals having copyrights and the state acting as a guardian. The state could hold the rights and accumulate the income from licensing in a special fund for animal welfare. such a model would work for animal sound recordings also!

    I have elaborated the issues in detail and proposed such a model in my own blogpost on the issue at – http://saggod.blogspot.in/2014/08/monkey-selfie-does-it-own-copyright-to.html

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