Monkey business and copyright: the end of a selfie saga

In 2011, a crested black macaque ‘stole’ the camera of
David Slater in the course of his travels in Indonesia. This would have been a
mere triviality, were it not that this resourceful monkey subsequently made a
number of selfies that quickly went viral. Just as
quickly, a question arose that would fascinate the global copyright community
for years: are these photos protected by copyright and, if so, who is the
owner?

When the British wildlife photographer David Slater
was closely watching a troop of monkeys on an Indonesian island in 2011, he
strategically set up his camera and waited. His patience was rewarded: one of
the monkeys grabbed hold of the camera, put on its widest smile and snapped a couple of
shots. Slater immediately knew that these photos would go far. He named the
photogenic monkey in question “Ella” and included the photos in his book Wildlife
Personalities.

Wikipedia also stumbled upon the photos of this
endangered monkey species and subsequently placed them on their website,
without however obtaining Mr Slater’s prior permission. The photographer was
not amused. After all, he had set up the camera meticulously – the monkey had
merely had the audacity to press a button. Consequently, according to the
photographer, he (and only he) could claim copyright on the photos in question.
Slater filed a take-down request. However, this request was denied by the
Wikimedia Foundation. Wikipedia argued that the photos could not be protected
under copyright since the photographer was not human.

In December 2014, the United States Copyright Office subscribed to Wikipedia’s view: works that are not created by a human
cannot be protected under copyright law. The Office expressly
indicates its refusal to register works that are
created by nature, be it by plants or by animals.

This did not bring the monkey selfie saga to an end.
In 2015, the American animal rights organisation PETA (People for the Ethical Treatment of
Animals) became part of the discussion and
argued that the monkey at issue, in the meantime renamed “Naruto”, could claim
copyright in the successful selfies. As a result, PETA sued Slater, requesting
not only a transfer of copyright, but also the appointment of PETA itself as
manager of the funds. US district judge William Orrick (of the Northern
District of California) rejected PETA’s claim as unfounded a year later. PETA
did not yield and appealed this decision. In the end, the parties reached an
amicable settlement: Slater was tired of fighting – and, moreover, almost bankrupt
– and agreed in September 2017 to donate 25 percent of future revenues from the
photos at issue to organisations committed to the protection of wildlife.

However, this did not bring an end to the story
either: in April 2018, the Court of Appeal of the Ninth Circuit in the United
States ruled on the principle issue in this case anyway. The Court of Appeal holds that animals cannot legally claim copyright.

In the final stage of the saga of ‘Slater and the
monkey’ (for now), the company Condé Nast Entertainment obtained the rights to
make a documentary on Slater’s life and, in particular, the selfie debacle. It
can therefore not be ruled out that copyright aficionados will soon be able to
admire the selfie saga on the big screen.

For Ella/Naruto, this seems to be the end of the line,
but the question arises how this story would have played out in a European or
even Belgian context.

Under Belgian law, a work is granted copyright
protection once two conditions are met, namely the requirement of concrete form
and the requirement of originality. First, a work must be expressed in a
certain form, which may be communicated to the public. After all, concepts or
ideas cannot be protected and are part of the public domain. In addition, the
originality requirement must be fulfilled. This condition was harmonised by the
Court of Justice of the European Union in the Infopaq case (C-8/08). Only if the author was able to make
certain free and creative choices in creating the work, copyright protection
may arise. In accordance with established case law from both the Court of
Justice and our own Court of Cassation (see e.g. Cass. 31 October 2013, AR n°
C.12.0263.N), the mere presence of various choices is insufficient: there must
be a personal stamp of the author that provides the work with the required
individual character.

Can an animal be such an ‘author’? In principle: no.
After all, animals are no legal subjects, but legal objects. They
have no legal personality and therefore cannot (yet) have any subjective rights
and/or obligations. This is currently the privilege of legal entities and
natural persons. Incidentally, only natural persons can be the original holder
of copyright. If a legal person wishes to claim copyright protection, the
copyright in the work in question must have been transferred to them.

Does all of this mean that the monkey selfies are not
protected by copyright in any form? The answer to this question is nuanced: if
the human photographer can prove that they have contributed to the work at
issue in an original way, e.g. by choices in lightning, set-up, colour, etc.,
there can be copyright protection, whether or not a ‘co-creating non-human
being’ is involved. As always, the assessment of such a personal, original
contribution is inherently subjective. We can therefore only wait for a useful
legal precedent in this regard. In the meantime, we invite you to enjoy the
infectious smile of the monkey who unknowingly started
this whole discussion …