Photographer beats monkey in two-year-long IP fight

October 18, 2017

In 2011 an Indonesian crested macaque (named “Naruto”) used a camera belonging to David J Slater from Monmouthshire to take a number of photographs.

David Slater said "I wanted that one shot [of an Indonesian crested macaque] full in the face […] but it wasn't going to happen […] unless they took the photograph themselves. And I did that by setting [a camera] up on a tripod with a cable release, walking a few meters away, allow them to come in, watch their own reflections, play with the camera, play with the cable release, and bingo, they took their own shots."

Wikimedia posted one of the “monkey selfies” and denied David Slater’s request (appealing to US copyright law) to take the image down. Wikimedia argued that "to claim copyright, the photographer would have had to make substantial contributions to the final image, and even then, they'd only have copyright for those alterations, not the underlying image. This means [because the monkey took the photo, not David Slater] that there was no one on whom to bestow copyright, so the image falls into the public domain."

On top of this, the campaign group People for the Ethical Treatment of Animals (PETA) claimed that Naruto should be the author and owner of the photographs, benefitting from all revenue made by the photographs.

In January 2016; a court in San Francisco asserted that copyright protection could not be applied to a monkey, and should apply to David Slater.

PETA appealed “on behalf of Naruto”; however PETA's appeal was dismissed.

David Slater agreed to donate 25% of any future revenue from the photographs to charities dedicated to protecting Naruto’s habitat. David Slater said that he believes he is "the first person in history to be sued by an animal".

PETA and David Slater made a joint statement, saying that this case "raises important, cutting-edge issues about expanding legal rights for non-human animals".

The decision that David Slater owns this copyright suggests that, despite the fact that he did not actively take the photograph, he was judged to have been directly dictating the actions of the monkey and therefore he was ultimately responsible for the photograph: as if he was using the monkey as a tool to capture the photograph.

There is more at play here than a simple assertion that “animals can’t own copyrights”, and this case may have comforting implications for any artist or author using animals, computers, or any other entity that is not a legal person as a medium in the pursuit of a copyrightable work.

Swindell & Pearson is a UK based intellectual property firm that has been helping businesses and individuals obtain patent, trade mark, and design right protection for their ideas, innovations and brands for over 135 years. With its head office in Derby, the firm also has offices throughout the Midlands including in Stoke, Wolverhampton and Stafford, as well as an office in Sheffield. To find out how Swindell & Pearson can help you and your business with any patent, trade mark or design right matters please get in touch via [email protected] or by telephone on 01332 367 051.