Six years after becoming embroiled in a dispute over who owns the copyright in a selfie taken by a monkey, Mr David Slater, the British wildlife photographer at the heart of the case, has reportedly said he is “broke, demoralised and considering alternative careers as a tennis coach or dog walker” as the case was heard in the Ninth Circuit Appeals Court in San Francisco earlier in July.

Mr Slater encouraged the female macaque to take the photograph during a trip to Indonesia in 2011.  The photograph led to a dispute between Mr Slater and the animal rights group PETA (People for the Ethical Treatment of Animals), representing the monkey, over who owned the copyright in the image – Mr Slater or the monkey.  When Wikimedia, the organisation behind the Wikipedia online encyclopaedia, made the images widely available online without Mr Slater’s permission it did so arguing that Slater did not own the copyright to the images as he did not take the photographs.  However as the owner of the camera and a key facilitator in the creation of the images Mr Slater argued that he is the owner of the images.

The case is the latest example of digital photography creating issues that have not previously been considered by the government or judiciary who create and bring into force the law which is largely silent on who owns the copyright for works not created directly by humans.  According to US copyright law the use of the word “author”, rather than “person” as used in the UK Copyright Designs and Patents Act 1998, creates additional confusion in the US but even in the UK the position remains unclear as to whether Mr Slater could legally be classed as the author or owner of the works even though he didn’t actually take the pictures.

There are clear public policy grounds on which to decide that Mr Slater, as the owner of the camera and the generator of the artistic work, is the owner of the intellectual property produced as it would clearly encourage experimental artistry and the production and distribution of interesting works.  Whilst the act says nothing about animal-generated works it seems sensible to argue that the owner of the camera who took it into the wild, allowed an animal to handle it, recovered it and downloaded the pictures should quite rightly be able to claim copyright rather than an entity which is unaware that it is exercising a creative function. As such, an argument arises that animal-generated photography should be treated no differently to machine-generated photography.

In summary, any suggestion that a monkey owns the copyright of the pictures appears to be a nonsense under both UK and US law but this case does highlight the continuing willingness of US media organisations to adopt a US-centric interpretation of copyright law regardless of the rights granted to, and the wishes of, authors and creators in other countries.  Furthermore there is a risk that the court could decide that someone, other than a human, can hold copyright – something that could then make the UK revisit its own interpretation of copyright and which could have significant implications in future as computers continue to use artificial intelligence to capture and create images.