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HG Intellectual Property Alert: What if a koala took the selfie? 12 August 2014

When an Indonesian monkey snatched the camera off a British photographer and took a photo of itself, it inadvertently sparked a fascinating legal battle over the copyright in the photo.  The   photographer claims he owns it, but Wikimedia argues that he does not seeing as though the monkey took the photo!

In this Alert, Partner Hayden Delaney and Solicitor Hayley Tarr look at how this case would play out under Australian laws. What if a koala took the selfie?

Key points

  • A pet, farm or zoo animal is deemed to be the personal property of its owner.
  • An animal is not an individual, and therefore not an author under the Copyright Act.
  • An animal cannot create copyright works.
  • In some circumstances, the actions of an animal are attributed to its owner.  The law is unclear as to whether these circumstances include actions of an animal which result in the creation of copyright works.
  • Where the actions of an animal’s owner, in causing or prompting the animal to take actions which result in the creation of copyright works, are sufficiently creative to warrant the existence of copyright in the work, then copyright might also subsist. 

Animals are chattels

Animals in captivity, which includes pets, farm and zoo animals, are deemed to be chattels (meaning that they are the personal property of the owner, farm owner or zoo owner).  Therefore, any property (including the intellectual property of copyright) produced by that animal, should automatically vest in the owner upon creation, in the same way that any fruit borne by a tree automatically vest in the tree owner once it falls off the tree and becomes a separate asset.

In this way, it seems clear that whatever is produced by the monkey is owned by the owner of the monkey.  But, can a monkey produce copyright work?

Is an animal an author?

Unlike an apple that exists because it exists, copyright is a statutory construct which only exists if the Copyright Act says it exists.

Section 10 of the Copyright Act 1968 (Cth) states that “"author", in relation to a photograph, means the person who took the photograph”.  Section 2C of the Acts Interpretation Act defines “persons” to include “individuals”.  Are animals “individuals”?  The answer (to whether they are, not whether they should be) is a resounding no.  If this were not the case, our present laws would be fraught with problems. Section  291 of the Queensland Criminal Code, for example, makes it “unlawful to kill any person”.  Given that, as discussed above, “person” is defined to include “individuals”, if “individuals” were taken to include animals, then Section  291 of the Queensland Criminal Code could be read as “(it is) unlawful to kill any animals”. If that were the case, a lot of Queenslanders would be looking down the barrel of hefty sentences when they sat down to dinner each night (as accessories after the fact).  Thus, suffice to say, the current legal definition of “individuals”, does not include animals.

Therefore, the monkey is not an author, so there is no copyright work unless an alternative author can be identified.

Are the actions of an animal attributable to its owner?

Could there be a copyright work, created by the owner (a person) via the monkey?  There are two ways in which this might happen:

  1. Under the common law, owners are deemed strictly liable for damage caused by straying livestock, for example.  Strict liability is even more onerous than vicarious liability (where the actions of one are attributed to another).  Thus, there are definitely grounds for an argument that the actions of the animal are attributable (and in fact attributed) to the owner and that, the act of taking the photograph is in fact an action taken by the owner vicariously.
  2. There are also grounds for an argument that the monkey should be viewed the same as any other chattel, i.e. such as a computer.  In this case, the question becomes whether the actions of the owner are sufficiently creative to warrant the existence of copyright in the work.  In the case of Telstra Corporation Limited v Phone Directories Company Pty Ltd [2010] FCA 44, the Court held that copyright did not subsist in Yellow Pages and White Pages telephone directories because the persons responsible for collating the directory did not exercise independent intellectual effort as the creation process was heavily automated (by computers).  Here, the owner allowed a monkey to use his camera. Is that sufficiently creative?  There are definitely a lot less creative actions that give rise to copyrighted work. 

Summary

In summary, there is no clear cut answer to the pressing question of what would have happened if a koala took the selfie?  But it definitely raises some intricate legal questions, demonstrating the inadequacy of our current concept of animals as chattels in light of their obvious uniqueness and independence in thoughts and actions.  This is not a moot point but of significant relevance given the prevalence of possible copyrighted works created by animals (such as artwork by dolphins and elephants) and the broader implications relating to other non-animal kingdoms (such as the more commercially impactful scenario of where some DNA that is possessed by either an individual or a laboratory mutates and thereby creates a new copyrighted work, being a new DNA sequence).

For more information on any copyright related matter, please contact the Intellectual Property and Technology team at HopgoodGanim.

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