Making a monkey out of copyright law

A ‘selfie’ snapped by a mischievous macaque who stole a photographer’s camera has demonstrated once again that there is no monkeying around when it comes to copyright law.

Image credit: http://goo.gl/ylfmy4

Image credit: http://goo.gl/ylfmy4

Wildlife photographer David Slater was understandably miffed when Wikipedia denied his request to take down the photograph – which has since gone viral – on the grounds that the photo was not subject to copyright as US copyright law does not extend to animals.

So who exactly does own the copyright in selfies? Monkey business aside (monkeys can’t own copyright in Australia), a brief analysis of Australian copyright law can lead us to the answer without going bananas.

It is not unusual for marketers and advertisers to attempt to capitalise on our love of selfies (and our love of memes) to push their products or services, like asking people to snap and upload a selfie in order to enter a competition or promotion. Utilising this social trend can be a powerful marketing tool.

In Australia, photographs are protected by copyright from the moment the shutter falls. Section 10 of the Copyright Act 1968 (Cth) defines the ‘author’ of a photograph as the person who took the photograph. This means the photographer owns the copyright – even if they don’t own the camera. So to all those people who lent their iPhones to Kevin Rudd for a selfie during the last election campaign, sorry, but there’s an argument that he owns them!

Of course, like any good legal principle, there are exceptions. Where the photograph is taken in the course of the author’s employment, for example, the employer owns the copyright. A slightly different rule applies to newspaper and magazine photographers, who own the rights in their photographs for the purpose of including them in a book or for photocopying, while all other rights are owned by their employer.

Section 35(5) of the Act also contains exceptions for commissioned photographs taken for private or domestic purposes, such as wedding or family photos. In these circumstances, the person who commissions the work is the owner. But does this mean that if you ‘commission’ a friend to take a selfie that the picture belongs to you? The answer, unfortunately, is no. The Act also requires “valuable consideration” in order for this exception to apply. So unless you’re paying them, your friend probably owns the pic.

Of course, where someone lends their phone to another person for the purpose of taking a ‘selfie’ (noting, of course, that a ‘selfie’ by definition is a photo taken by yourself), it could also be argued that there is an implied licence for the owner of the phone to use the photograph for whatever purpose they want, including capitalising on the image commercially using a sub-licence. But in the absence of a written agreement (and let’s face it, there is almost never going to be one), the validity of such an argument would ultimately be a matter for the courts to decide.

Identifying the owner of a photograph is important because of the exclusive rights that copyright confers, including the right to reproduce, publish and communicate the image to the public (such as placing it on a website). Marketers who want to publish or share selfies therefore need to ensure that they have the rights to do so, such as by including an assignment of rights in their competition terms and conditions.

Other issues to bear in mind when thinking about selfies include moral rights, which are separate to copyright and can only be held by the creator of a work. Moral rights include the right of attribution of authorship, the right not to have authorship falsely attributed, and the right to of integrity of authorship (which protects the creators from having their work subjected to derogatory treatment).

Case Study

Three teenagers head across town in the hope of spotting their favourite celebrity. And there he is, sitting on a bench alongside ANOTHER famous face! The teenagers, of course, start snapping selfies and sharing them on social media. The best picture goes viral, bringing fame to one of the teens. The question is who owns the ‘selfie’?

Most people will recognise this scenario as that involving three US teenagers who snapped a photo featuring ex-Beatle Paul McCartney and billionaire Warren Buffett. The shot was featured in news publications internationally, rocketing one of the group to fame. Under Australian copyright law, if the now-famous teen had taken the ‘selfie’ himself, he would be the owner. However, as one of his friends actually took the photo in question, the copyright would vest in the friend even though it wasn’t his camera.

Key points for Brands & Advertisers  

It is important to recognise that content that is freely viewed does not correspond to content that can be freely used. As such, brands and advertisers should seek to obtain the necessary consents from copyright owners to allow them to use selfies or other images in the way they want, such as in marketing materials or by editing or changing them. If you run a promotion and collect contestants’ images, be sure to include permission to use the image in your terms and conditions if you wish to use those images for your firm’s marketing. Whilst finding the original creator of works may present a challenge, it is the best way to avoid future liability issues. When the images are ‘orphan works’ (i.e. you cannot find the creator of the image), it is important to manage your copyright risks and perhaps seek legal advice.


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