Press and Social Media

Whose is the selfie photograph of the now famous monkey?

• August 02, 2014
• Gustavo A. A. Sena

A global debate on intellectual property rights

Whose is the selfie photograph of the now famous monkey?

The story of the British photographer David Slater and his photograph of the crested black macaque has caused a controversy regarding the copyrights of said self photograph or, as it is currently widely known, selfie. Below there is an analysis of the causes, protagonists and possible consequences of this paradigmatic case in intellectual property law issues.
The problem arose when the famous online encyclopedia Wikipedia started to use the photograph of a monkey, without its author's authorization, and he requested Wikipedia to cease in using it because he considered it to be of his authoring. Wikimedia, the non-profit organization that manages said encyclopedia, argued that the photograph is of public domain and refused to discontinue its use.
The underlying question, then, is: who is the owner of such image rights and why? There are three different options:

1) that the owner is the macaque or the owner of the macaque,
2) that Wikimedia is correct and the photograph is of public domain, or
3) that the photographer is correct and he is the owner of the rights..

Let's analyze briefly each case.

Firstly, even though it was the monkey the one who shot the camera, for the intellectual property law, ownership over works (in the instant case, a photograph) can only fall on a natural person, i.e. a human being, and not on a non-human living creature. In this respect, the macaque could not be the author of the photograph.

The monkey, for the law, has the same treatment as a thing. Regulations about it can be issued (e.g. preventing its abuse) but it cannot be the owner of any good or intellectual work.

But then, if the monkey is not legally the author, would the photograph taken by it be of public domain? Let's see.

Is any person the owner of or responsible for the monkey?

The question is not idle. What would happen if the animal caused any damage?

The responsible person would be its owner or guardian. Therefore, the owner of an animal, either domestic or wild, would be liable for any damage it caused pursuant to our Civil Code.

If the animal caused any damage, in principle, the owner would be liable. Therefore, if he were liable for the damages, he would also benefit from the good things.

If the animal won a prize at the Rural Exhibition, a horse race at the Hippodrome or a reward for having saved someone, such prizes and rewards would belong to the owner of the animal, not to the latter.

Therefore, if the monkey were owned by someone, the economic rights of its exploitation would correspond to him/her.

In this particular case, the monkey lives in an ecological reserve. Thus, the National or Provincial State that has such reserve under its care could claim rights over the benefits arisen from the photograph.

What about the rights of the photographer and owner of the camera?
It is evident that if the monkey had not caught the camera, it would not have taken the photograph and we would not be addressing this issue. The photographer also has a predominant and major role in this.

Let me phrase an example:
The owner of a car got out of it and left the engine running. A dog owned by a third person got in and leaned on the gearshift. Then, the car moved forward up to the street intersection and caused an accident. Who would be responsible for it? The owner of the car or the owner of the dog? Both, because they were the owners or guardians of the car and the dog, pursuant to sections 1113 and 1123 of the Civil Code.

In the same example, the car did not cause an accident but won a price of 10,000 Pesos granted by the neighborhood council to promote the neighborhood, which was awarded to the 100th car passing through that intersection that day.

Whose is the prize? According to what is being discussed above, the prize would belong to the owner of the dog and the owner of the car.
In both cases, in my criterion, the owner of the car had a predominant role. If he had not left the engine running, or if he had closed the car, the dog would not have been able to do anything.

What if we replaced the dog by a monkey and the car by a camera? The solution would not need to change: the owners of both would be entitled to the benefits obtained by the photograph.

But also, in our case, the photographer and owner of the camera had a crucial role. After all, the photograph was inside his camera and, even though he did not shoot it directly, nobody could deny the major role he played in this story. Not only was he in the proper place, at the proper time and had the luck that a very photogenic monkey borrowed his camera, but also he retrieved his property, reviewed the photographic material obtained and chose the photographs. It is undeniable that he does have arguments to ground his claims over these rights.

In conclusion, in my opinion, rights over the ownership of the image and its economic exploitation can be claimed by both the owner of the monkey and the British photographer. But, if the monkey were not owned by anyone, or if the monkey's owner did not claim such rights, the commercial and economic exploitation of the work would belong exclusively to the photographer and not to Wikimedia since the work is not of public domain.

By Gustavo A.A. Sena,

SENA & BERTON MORENO was founded in 1937 by ALFREDO SENA and ERNESTO E. BERTON MORENO as a Patent and Trademarks Agency with a stable staff of only four people. Since then, the Firm has grown to reach its current size of forty people, working at our offices located only two blocks away from the Government House and at the heart of the commercial and financial district of the city. Ver más