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Naruto v David Slater – can an animal own copyright?

News and ViewsNewsNaruto v David Slater – can an animal own copyright?
Dennis Lee

Dennis Lee

Partner

It has been announced in the press today that the photographer David Slater has settled his case with PETA (People for the Ethical Treatment of Animals). PETA was suing Slater in the San Francisco Appellate Court of the 9th Circuit on behalf of ‘Naruto’, a macaque monkey, whose photos David Slater took on a specifically designed photo shoot in the Sulawesi jungle. It has been reported that in settling the case Slater has agreed to donate 25% of the income he receives from the sale of the photos to a monkey charity.

Slater the photographer had set up the camera and tripod, chosen the lens, angle and light, and focused the camera. But PETA claimed that the macaque pressed the automatic shutter release on the camera and therefore owned the copyright. As a result of the reported settlement between the parties, the District Court in San Francisco was asked not to make a decision on whether the macaque actually owned copyright in the photos.

It is a shame that this case has been settled as Slater had argued previously that the copyright in the photos vested in him. In an article in the Daily Telegraph by Camilla Turner on 13th July 2017, Slater is quoted as saying, ‘It has taken six years for my original intention to come true which was to highlight the plight of the monkeys and bring it to the world….No one had heard of the monkeys six years ago, they were down to the last thousands … the locals used to roast them, but now they love them…’, and are presumably not eating them anymore!

Slater has also said on BBC1 Sunday Morning live on 23rd July 2017:

‘I am definitely the creator…it was my intent and my creativity and my experience with the monkeys…’.

‘I thought if I set my camera on a tripod and offered them a button to press…the cable release…their natural curiosity would bring them in to start pressing the button…I had seen the noise of the camera excited them so I pressed the button and made the noise…’.

If Slater had not travelled to where the monkeys lived, and the camera equipment had not been set up with the great skill Slater gained through working as a wildlife/conservation photographer for 20 years, with the cooperation and acceptance of the monkeys, we would not have been privileged to have the photos we do today of the macaque monkeys Slater took.

The Major Public Policy purpose behind the creation of the Law of Copyright was to protect the economic rights of the creator of the original work. Copyright subsists in the UK in an original artistic work (s1(1)(a) CDPA 1988).

A photograph is expressly identified as incorporated within the meaning of ‘artistic work’ (s4(1)(a) CDPA 1988). The copyright in an artistic work or photograph belongs to the ‘person’ who is the ‘author’ of the work. The ‘author’ of the work is the ‘person’ who creates it (s9(1) CDPA 1988).

For UK/EU Law to apply it is necessary to look at the qualification provisions within the CDPA 1988 (s153 and 154). They relate to the author of the work (s153(1)(a)) or the country in which the work was first published (s153(1)(b)) or broadcast (s153(1)(c)). A work qualifies for protection under UK/EU Law if the author was at any material time a qualifying person, being a British citizen, a national of another EEA state etc (s154(1)(a)). It is suggested that under UK EU copyright law and the recent cases on photographs decided by the CJEU and the UK courts that copyright in the photos should belong to the photographer as the author of the original artistic work.

It is unfortunate that no decision appears to have been made by the Appellate Court about whether a non-human could own copyright. It therefore remains a moot point on whether an animal could potentially be the author of a copyright work, and the case also has implications in terms of a country’s international obligations in relation to the protection of copyright under the Berne Convention.

If your household pet starts taking selfies or you have a query generally about copyright ownership, please contact Dennis Lee.

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