Monkey selfie exposes broader IP issues


The recent copyright dispute over the “monkey selfie” illustrates that as intellectual property rights unfold, novel issues will continue to arise faster than legislators’ ability to develop policy and implement laws, says Toronto business lawyer Bill Northcote.

According to an article in The Telegraph, British photographer David Slater was taking pictures of a group of Indonesian macaque monkeys in 2011, when one of the simians grabbed his camera and snapped off hundreds of pictures, most of which were out of focus. However, the animal managed to capture incredible images in the process, one of which is the infamous monkey's self-portrait.

The copyright dispute arose when Wikimedia included the picture in its royalty-free databaseng it is in the public domain because there is no owner of the image. Slater, a professional photographer, argues providing the image for free is causing him financial difficulties and a court should decide who owns the image.

Northcote, chair of Shibley Righton LLP’s business law group, says that Wikimedia’s response that the image is public domain challenges the perception that all artistic or creative works are the copyright of some person.

“Of course some copyrighted works become in the ‘public domain’ after the expiration of the time period for copyright protection,” Northcote says. “In the case of the monkey selfie, however, Wiki argues that no person can or ever will own the copyright in the original image.”

Although this is not a Canadian case, Northcote points to 2007 Federal Court decision, which held that the author of a copyrightable work generally “must be a human being or a group of human beings.”

Another requirement to obtain copyright is that the author must be a citizen or resident in a treaty country. “Most countries are 'treaty countries' for the purposes of the Copyright Act (Canada),” says Northcote. “In this case, the photographer claiming ownership is, according to media reports, a British subject. The United Kingdom is a treaty country. Of course, the monkey cannot be a citizen and is not a person.”

Northcote says that there could be a potential remedy for the British photographer because the 2011 image was taken before recent changes to the Copyright Act.

“At that time, the Copyright Act provided that the owner of film or a photographic plate – think Matthew Brady and daguerreotypes images – was deemed to be the first owner of the copyright in that image. Of course, the law is not settled as to whether digital images are entitled to the same protection as film for the purposes of this now repealed section,” he says.

“The photographer may have other copyright protections available to the extent that he altered the monkey selfie provided that he met two of the other basic requirements of copyright – originality and expression,” says the Toronto lawyer. “It's unclear from the media reports as to whether this occurred and the manner in which the images became available to Wikimedia and the public generally.”

While the monkey selfie dispute is a novel one, Northcote says it highlights the lag between emerging works and changing legislation.

Northcote says that as creative persons continue to create new works in ways that are unforeseen, legislators will continue to struggle to develop policy, "while balancing the economic benefits to be provided to creators against the commercial interests of the public in using and exploiting works and then implement legislation,” he says.

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