By now it’s all over the twittersphere, the blogosphere and every other made-up sphere on this green and blue sphere. The monkey that stole a photographer’s camera and got her pictures published in the Daily Mail.
Copyright experts and dilettantes alike are going ape trying to analyze who owns the copyright in these images. Why? Because the Daily Mail put a copyright notice on two of the pictures in its article. Most of the analyses I’ve seen are Americans trying to sort it out under American law, which is typical, but not necessary the best approach here. You see, the monkey is Indonesian. The work was made in Indonesia. The photographer who’s camera was taken and the agency claiming copyright ownership of the photos are British.
The main questions being discussed: Does the monkey get the copyright? If not, does anyone?
Monkey stole the camera from the camera man
Under Indonesian copyright law an author is “a person or some persons.” Miss Monkey is ruled out right there I’m afraid. But what about under British copyright law? Since it’s a British company claiming copyright, any suit is likely to be brought in the UK. Indonesia is a member of Berne and TRIPs, so the photos should be treated the same as UK works under UK copyright law. Unfortunately for the monkey, The UK copyright law also defines author as “the person.” Sorry monkey, it’s not you.
If not, then who?
It appears the monkey, by virtue of not being a “person,” cannot be the author of the photos. (…unless there’s a statute somewhere that makes monkeys a person the way corporations are made a person.) So who gets the copyright?
The photographer / Carters News
If the photographer did own the copyright, it appears that he transferred his rights to Caters News Agency Ltd based on the copyright notices on the newspaper photos.
There is a clause in Article 7 of the Indonesian copyright law that specifies if a work is designed by one person and worked out by another, then the one who designed the work gets the copyright. If the photographer had set up the shot and the monkey had just taken the photo, the photographer would likely have the copyright. But the photographer didn’t design anything here. He just left his camera. The monkey did all the designing in the photos, so this article shouldn’t apply.
Perhaps more useful here is Article 9, “If a legal entity announces that a work has originated from it without mentioning a person as the author, then the legal entity shall be deemed to be the author, unless proven otherwise.” The monkey took the photos in an Indonesian national park. The Indonesian government presumably owns that park and is a legal entity. It would seem that if the Indonesian government claimed it was the copyright owner, then it would be. Except for that “unless proven otherwise bit.” But this leads us to another question, does the park own the monkey?
If not having an author as defined under the copyright law is the same as having an unknown author, then Indonesia owns the copyright under Article 10A of the Indonesian copyright law.
The main claim I’ve seen in the US discussions of who should own the copyright is that no one should; the photos should be in the public domain. And it appears, under UK copyright law, they’re right. - Now, this is the part where, knowing that there are a great deal of very knowledgeable UK copyright practitioners who read this blog and that the author is not one of them, the author asks for forgiveness and clarification should she get anything wrong. -
Under Section 153, the work only qualifies for copyright protection if it meets requirements in several different areas including the area of author. Section 154 outlines the requirements the author must meet in order for the work to receive copyright protection.
- Option one, a British citizen. Pretty sure the Indonesian monkey is not a British citizen.
- Option two, an individual domiciled or resident in the UK. Monkey lives in Indonesia.
- Option three, an individual domiciled or resident in another country to which the relevant provisions of this Part extend. This seems to include any countries to which the UK must extend national treatment with respect to copyright. Since Indonesia is a member of Berne and TRIPS, Indonesia would be one of these countries. It might seem like we need to know if the monkey is an individual, or if it can be domiciled or resident. But, that doesn’t matter because the first part of Section 154 says “if the author was at the material time a qualifying person.” (emphasis added)
So it appears under UK law, the photos are in the public domain. Under Indonesian law, the matter is less clear.
Barrels of Fun
Perhaps more fun than the real story are all the different extra facts you can add to make even more puzzlingly-fun scenarios. What if the monkey belongs to a zoo? Or a person who taught him to take pictures? What if the park or zoo where the monkey lives posts a sign that says the copyright of any photographs taken by animals inside the park or zoo belong to the park or zoo? What if it is not a monkey but one of the gorillas that can speak sign language or otherwise communicate to subjects in a photo how to move?
Personally, I like the position one of my colleagues took: Forget the copyright issue. The monkey should sue for rights of publicity.