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MONKEYING AROUND

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THE FACTS British wildlife photographer, David Slater, was visiting Indonesia on an assignment to capture photos of the endangered Celebes crested macaque. Slater claimed to have left his camera in a national park in North Sulawesi, Indonesia ("the National Park"), when a female macaque took his camera and snapped multiple selfies, one of which was a photograph of it smiling cheekily at the camera. The photograph, now famously known as ‘the monkey selfie’, was published in various magazines and on websites including Wikimedia, a non-profit organisation behind Wikipedia. This resulted in the automatic addition of the photograph into the Wikimedia Commons, an online source of images, which may be accessed free of charge by the public.

THE DISPUTE Slater claimed copyright ownership over the photograph and requested for Wikimedia to either remove the image or pay for its use. This was disputed by Wikimedia as it claimed that since Slater was not the one who had actually taken the photo, he did not own the copyright. It was argued on the ground that since copyright cannot vest in a non-human, it now falls within the public domain. The United States (US) Copyright Office had also previously advised1, that for a work to acquire copyright, it must be created by a human being, to the exclusion of plants and animals.

THE LAW ON COPYRIGHT OWNERSHIP The ownership of copyright would depend very much on the definition of ‘author’, since the author of a work is the first owner of any copyright in it. According to section 26 of the Malaysian Copyright Act 1987 ("the Act"), copyright shall vest initially in the author. The definition of ‘author’ is found in section 3 of the Act. In relation to photographs, ‘author’ is described as the person by whom the arrangements for the taking of the photograph were undertaken.

If Slater was subject to Malaysian copyright law, it could be argued that since he was the one who bought the equipment, travelled to the National Park, and had set up his equipment to take pictures of the macaque, he should be regarded as the author. Even if the monkey had pressed the button resulting in the disputed image, it could be further argued that the monkey is akin to a human assistant who helps prepare a shot. The creativity of the composition of the scene should vest in Slater, and so should the copyright.

In the United Kingdom (UK), copyright is governed by the Copyright Designs and Patents Act 1988. The definition of authorship is quite similar to that found in the Malaysian Copyright Act 1987. Hence, it would also be in favour of Slater.

It is interesting, however, to note that in Singapore, in section 7 of the Copyright Act 1987 (Chapter 63), ‘author’ in relation to a photograph, means the person who took the photograph. It may therefore be difficult for Slater to argue that he is the author. At the same time, it may be bizarre to argue that the monkey was the one who took the photograph, and therefore owns the copyright.

On that note, one may find unusual, the lawsuit filed in the US by animal rights organisation, People for the Ethical Treatment of Animals (PETA), on behalf of the macaque monkey (which now goes by the name of Naruto), on the ground that animals too should be capable of owning copyright, as there is nothing in the US copyright law to state that an author must be confined to a human being.

CONCLUSION There needs to be clarity on the definition of ‘author’ and to stipulate if it is confined to or goes beyond human beings. The law is generally silent on this issue, and should be articulated soonest, for otherwise it could compromise the creative industry.

For further insight in this area of law, please contact our Partner:
Darren Kor Yit Meng

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