13 September 2017Copyright

Could a monkey succeed in the UK courts?

Yesterday, WIPR  reported that the ‘monkey selfie’ dispute between a photographer and the People for the Ethical Treatment of Animals (PETA) had reached a settlement.

The case, which concerned a macaque monkey called Naruto which had taken a ‘selfie’, led to much discussion over whether an animal can hold copyright.

WIPR spoke to UK lawyers to find out whether a case like this would ever succeed in the UK courts.

Falling at the first hurdle

Simon Clark, partner at Bristows, claimed that any attempt to argue that a monkey owned the copyright in its ‘selfie’ would “fall at the first hurdle” in the UK.

“UK law requires the author of a copyright work to be a person, which is limited to a human being or a corporate body,” he explained.

“The photographer could show that he intended the monkey to take the selfie and composed the photograph by choosing the framing and viewing angle and other aspects of a photo.”

He added that by doing so, the photographer could demonstrate that the ‘selfie’ “could be protected by copyright because it incorporated his own intellectual creation”.

Nick Aries, IP partner at Bird & Bird, said that if a similar case were to arise in the UK, it would take “either a law reform or a very creative judge to find that an animal is entitled to own copyright”.

In January last year, Judge William Orrick of the US District Court for the Northern District of California rejected PETA’s claim that the copyright to the ‘monkey selfie’ photograph should belong to Naruto.

PETA then appealed to the US Court of Appeals for the Ninth Circuit, but the case was settled before a verdict was issued.

Joel Smith, partner and head of IP at Herbert Smith Freehills, added that while a similar case could arise in the UK, it is unlikely to succeed in the UK courts.

“The photographer could own the copyright, as de facto the ‘creator’ of the set-up for the photograph, or at least the person who made the arrangements,” he stated.

Smith went on to add: “More surreal would be arguments that the photographer is the owner, because the animal was acting in the course of his employment or the agreement between the parties was that the photographer would acquire any rights vested in his freelance contractor.

“All and all, there is plenty of scope for monkey business here for creative lawyers."

Animal rights

David Hansel, partner at Hansel Henson, said it was good to see a settlement reached in the US because the case was brought to raise public awareness of animal rights, “a cause to which the money spent on litigation might have been better used in other ways”.

He added that there are two legal issues to be addressed—whether the monkey is an “individual” and capable of being a qualifying person and whether a monkey can own property (which is what a copyright work is).

“If the answer were yes to both questions then what happens when the monkey dies? Assuming she did not leave a will then the copyright would pass under the rules of intestacy, which is an entirely different question!”

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More on this story

7 January 2016   A US court has dismissed a claim filed by the People for the Ethical Treatment of Animals in which the organisation claimed that the copyright to the ‘monkey selfie’ photograph should belong to a macaque ape.
7 August 2017   The copyright infringement case brought by the People for the Ethical Treatment of Animals on behalf of a monkey is nearing its conclusion after a joint motion to stay the appeal was filed.
24 April 2018   Naruto, a Macaque monkey, lacks standing to sue for copyright infringement, according to a ruling from the US Court of Appeals for the Ninth Circuit.