The cost of monkey business

Many will remember the story about the ‘monkey selfie’ from 2011.

The story was hugely entertaining, not least because it was accompanied by a number of rather good photographs, apparently taken by the monkey that got hold of the wildlife photographer’s camera that had apparently been set up to coax the monkeys into pressing the shutter whilst looking into the lens – the results were great – close ups of a monkey looking into a lens and apparently smiling.

The less entertaining fact was that the photographer who had set up the camera to take shots became unwittingly embroiled in a legal battle to prove that he owned copyright in the shots which, whilst not taken by him, had been staged by him so entitling him to copyright. The question for the court was did the photographer or the monkey own the copyright (yes - really).  As a photographer, he makes money (and covers the cost of securing shots) by selling the resulting images commercially – the ownership of these very commercial shots was important to his income. Proceedings were in San Francisco which, for the UK based photographer, complicated matters. Those proceedings related to US websites that had been asked to remove the photographs from their websites as there was no permission. The litigation, brought on behalf of the monkey by People for the Ethical Treatment of Animals (Peta), claimed copyright on behalf of an identified monkey from the troop.

Before you start to wonder how one negotiates a copyright licence with a monkey, logic prevailed and the US Copyright Office ruled that animals cannot own copyright under the relevant statute. Peta appealed that ruling and the appeal has only just been heard. Issues before the court included whether Peta were close enough to the monkey to represent it in court, the value of the copyright to a troop of macaques and whether the named monkey suffered any loss in not being recognised as the copyright author. If that sounds bizarre there was even legal debate over whether Peta had identified the correct monkey with the legitimate right to sue the photographer (no monkey was called to give evidence on this point).

Sadly, the ruling came too late to protect the photographer and ensure that use of the photographs were authorised by him, his fee having been agreed. Logistically and evidentially, gathering the evidence of who used the image and overcoming any uncertainty as to liability for the period copyright was in dispute is a task the photographer has indicated he cannot realistically pursue against each individual/organisation that used the image without permission.

Lessons learned? Copyright in the artistic fields is an important tool in protecting commercial interests. The publicity appears to have assisted in the fight to save the crested black macaque from extinction. More importantly, never trust a macaque monkey.

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