Chance and the Macaque 2

Maybe he does have a copyright interest . . .

Monkey Selfie

UK based photographer David Slater’s infamous “monkey selfie” has a complicated jurisdictional history. The monkey took the photograph in Indonesia, where Slater set the scene for the photograph. Slater has a contract with UK based Caters News Agency, and Caters published the photograph online. Then, US based Wikipedia and parent organization Wikimedia posted the photograph online to an American domain site: Wiki Commons. If Slater were to go to court, he seemingly could have a choice of two different areas of law: American or British.

There has been a lot of speculation already on American copyright law, because the legal community has assumed that American law would apply. The general consensus has been that American law would not allow a copyright, because the photographer is the monkey, and American law does not recognize a right of an animal to hold a copyright.

Most people do not seem to realize that Wikimedia also has a registered non-profit in the United Kingdom, so Slater could probably sue that division under the laws of the United Kingdom. If the United Kingdom’s international choice of law rules follows the American choice of law rules, it is likely that the copyright law of the United Kingdom would govern as it is a citizen of the United Kingdom suing a non-profit incorporated under the laws of the United Kingdom. We don’t know whether a person in the United Kingdom can view the image in the UK on Wiki Commons website, because here in the Scholarly Communications Office, we don’t have access to an Emulator to see what the Internet looks like in London. Presuming that a person can access the image in Wiki Commons from London, the law of the UK would apply. The law of authorship there states “In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.” In this case, Slater may be that person, and UK law would determine that. What makes this case more interesting is that if American legal scholars are correct, then the monkey selfie would be in the public domain in the United States but protected under copyright law in the United Kingdom. It will be interesting to see how Wikimedia responds, as copyright law only covers national boundaries but the Internet is multinational.