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The Monkey Selfie Lawsuit in the US – how would the High Court of Ireland decide a similar case?

“Monkey Sees, Monkey Sues”

Last month a federal court* in San Fransisco, California held that a macaque monkey who took several selfies could not be declared the owner of the images’ copyright either under Unites States legislation or its Constitution.

The case

The case** arose out of a dispute between the animal rights organisation the People for Ethical Treatment for Animals (PETA) and wildlife photographer David Slater whose camera the monkey used to take the images.

In 2011, Slater went to a nature reserve on Sulawesi Island, Indonesia to study a family of macaque monkeys.   There, Slater set up his camera on a tripod and deliberately left the remote trigger for the camera accessible to the macaque who subsequently took two famous monkey selfies. The selfies were later published in a book by Slater’s publishing company, Blurb.

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PETA issued proceedings on behalf of the monkey against Slater and Blurb seeking a declaration from the US federal court that the macaque monkey was the owner of the selfie and an order granting the assignment of the copyright in the images to the monkey.  The organisation also sought the equivalent of an order appointing it as trustee of the income generated by the images so that it could administer same for the benefit of all of the macaque monkeys on the reserve on the Indonesian island.

 

The photographer’s copyright not at issue

Slater’s entitlement to the copyright in the images was not at issue in this instance.   The US federal court had to decide as a preliminary issue (i.e. before a hearing of the full trial) whether an animal could own copyright in an image in the United States.  If the court held in the affirmative on that question (which it did not), the case could have then proceeded to a full hearing of the issues between the parties.

 

Decision in the United States

Unsurprisingly the US federal judge held that US legislation and its Constitution did not extend copyright protection to animals and dismissed the case accordingly.

 

In Ireland

Unremarkably the monkey and/or PETA are likely to be unsuccessful in any attempt by PETA to establish that the monkey owns the copyright in the images in Ireland.

The law of copyright in this jurisdiction is governed by the Copyright and Related Rights Act 2000 (“the Act”).  Section 23 of the Act states that an “author” of a work shall be the owner of copyright therein and section 21 of the Act states that the “author” means “person” who creates the work which in the case of a photograph means a photographer (i.e. the monkey in this case).  Whilst the Act does not specifically state that a person means an individual or a body corporate section 18 (c) of the Interpretation Act 2005 does so, unfortunately, the monkey and/or PETA on its behalf would not be successful in an argument under the Act.

Similarly an argument that copyright protection should be extended to animals on the basis that such a protection is an unenumerated right guaranteed by our Constitution is likely to fail as the relevant article (40.3) refers to “personal rights” of “citizens” and an animal is not a citizen.

 

But what about the photographer, would he own copyright in the image in Ireland?

If a court accepted a broader definition of ‘photographer’ to include Slater (as he purposefully left the camera with the monkeys and orchestrated the shot) Slater could have difficulty in proving that the image or work was “original”.

In order for copyright to subsist in a work in Ireland and in member states of the European Union same must be ‘original’ (section 17 (2) (a) of the Act and EU Directive 2001/29/EC) and a work is considered original if it is the result of the author’s own intellectual creation***.

Whilst the answer to this question could be the subject of an article itself, in brief, it is submitted that Slater would be in a weak position trying to assert copyright in the monkey selfies as leaving a camera amongst a family of monkeys would not be a sufficient expression of his intellect to render the images ‘original’.  If Slater used particular photographic techniques or computer software to manipulate the images in some way, it is submitted that he would be in a better position to prove originality in them and that he owned the copyright.

This case highlights the legal difficulties in establishing ownership of copyright in an image and how difficult it is for a monkey to make it in the media industry.  Great story.

 

Deirdre Farrell, solicitor AITI Chartered Tax adviser, Amorys Solicitors, Suite 10, The Mall, Beacon Court, Sandyford, Dublin 18 deirdre@amoryssolicitors.com, tel 01 213 59 40

© February 2016

 

NB: In publishing the above image we are availing of the ‘fair dealing’ exemption from infringement set out in section 51 of the Act.

 

 


* A federal court in the United States, is a court that has jurisdiction to decide on claims that fall to be determined on the interpretation of the laws, treaties or Constitution of the United States as opposed to internal State laws.

** US Distrcit Court, Northern District of California, San Fransisco Division, case reference 15-cv-4324-WHO

*** This is accepted as the harmonised definition of originality in the European Union -see Infopaq International A/S –v- Danske Dagblades Forening C5-08 Court of Justice of the European Union (4th Chamber)