Monkey Business: Copyright and Contracts

In 2011, David Slater (a professional photographer) visited a national park in Indonesia. While there, he left his camera unattended. The Daily Mail writes:

It soon attracted the attention of an inquisitive female from a local group of crested black macaque monkeys, known for their intelligence and dexterity.

Fascinated by her reflection in the lens, she then somehow managed to start the camera. The upshot: A splendid self-portrait.

Read more: http://www.dailymail.co.uk/news/article-2011051/Black-macaque-takes-self-portrait-Monkey-borrows-photographers-camera.html#ixzz3HRXyX3po

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Slater later discovered the picture on his camera and submitted it to the Daily Mail, giving credit to his employer. Soon after the Daily Mail published the photograph, a controversy arose in the blogosphere when the blog Techdirt published the photograph as well. The Daily Mail immediately demanded that Techdirt remove the photograph due to copyright infringement. However, Techdirt asserted that only a photograph created by a human can receive copyright protection.

Lesley Harris writes that in Canada “copyright protection is automatic upon creation of a work once in some sort of tangible form”. To receive protection under Canadian legislation, the photographer must be either a citizen or a resident in a country that is part of the international regime of copyright protection. This implies that only humans can claim copyright protection.

However, assuming that an animal could be considered a citizen or resident, it is unlikely that an animal can transfer their copyright rights through an assignment or a license. A transfer of rights requires that the criteria of offer and acceptance be met.

It is unlikely that a monkey is capable of either offering or accepting a binding legal agreement. Therefore, Techdirt was correct in determining that the Daily Mail did not own the copyright to the monkey selfie.

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