Is copyright law making a monkey out of David Slater?

Readers may recall the NBC sitcom Just Shoot Me!, about the life of staff at a fictional fashion magazine. David Spade’s character, Dennis Finch, often mocked the fashion photographer, Elliot DiMauro, suggesting that even a monkey could do his job. In one memorable episode, Elliot is nominated for an award and, as the plot develops, he is forced to admit that the photograph was taken by a monkey on rollerskates.

Well, sometimes life mimics art just as art mimics life. Some macaque monkeys in Indonesia recently took some rather amusing photographs using wildlife photographer David Slater’s camera equipment. In an interview, he stated that one of the monkeys “accidentally knocked the camera and set it off”, and intrigued by its reflection, continued to take a number of photographs of itself. Mr Slater is now asserting copyright ownership and therefore control of the reproduction of

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those photographs, attempting to stop websites from posting them without his consent.

In asserting copyright ownership, Mr Slater later stated that “it was my artistry and idea to leave them to play with the camera and it was all in my eyesight. I knew that the monkeys were very likely to do this and I predicted it. I knew there was a chance of a photo being taken”, a far cry from his initial description of the incident as accidental. However, as Tech Dirt points out, copyright does not vest in an idea but rather its expression. Merely facilitating another creature to create a work is insufficient to vest copyright in the facilitator.

In Australia, as in the US and UK, the author (and generally the owner) of copyright in a photograph is the person who took the photograph. The exception to that general rule is where a person sets up the scene to be photographed and directs another person to press the shutter button at a moment chosen by the first person, in which case the first person is considered the author of the photograph. Another exception is where the person who took the photograph works collaboratively with the person who set it up, in which case they may be joint authors (and owners) of copyright. ‘Setting up’ the photograph would usually require the person to have regard to features such as angle, lighting and composition. Ironically then, Elliot in the Just Shoot Me! example above would benefit from copyright vesting in the photograph which he composed and set up, since the monkey just happened to skate past and press the button, whereas Mr Slater does not benefit from copyright ownership as he merely enabled the monkeys to play with his camera equipment.

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