Horsing around

By Brand Heeler

Some interesting questions of copyright in animal pix

Animals in selfies, eh? Where will it end? You may remember the so-called ‘monkey selfie’ taken by a Celebes crested macaque of herself using equipment set up by David Slater, a Welsh nature photographer. This led to a bru-ha-ha over whether Mr Slater could claim copyright in the selfie (as he had been responsible for all preparations, bar pressing the button) or whether the image was effectively copyright-free, being the ‘artistic creation’ of a non-legal-entity. (There was also a third option, promoted by PETA, that the macaque should be granted the copyright, to be administered by PETA (naturally) on her behalf for the benefit all crested macaques in her wildlife. This was dismissed by a US judge early in 2016 on the basis that copyright does not extend to animals, and regardless of suggestions that PETA had actually been suing on behalf of the wrong monkey in the first place!)

Different legal systems addressed this problem in different ways and the current situation is therefore fairly messy. The selfie has been held to be Mr Slater’s intellectual property in the UK, but deemed to be ‘public domain’ in the USA. Consequently, Wikipedia (a US corporation) has felt completely within its rights to publish the picture without Mr Slater’s consent, whereas he for his part has announced his intention to sue for tens of thousands of pounds in lost licensing fees.

So what could top that? How about a grinning horse! Betty the horse photobombed a selfie taken by a father and his 3 year old son from Prestatyn (yup – Wales again!) who subsequently won a £2,000 holiday in a ‘Made Me Smile’ competition. Betty’s owner promptly popped up to demand a share of the prize on the basis that her consent should have been obtained first. We often lament the general public’s lack of understanding of the finer points of copyright law, but a quick scan of the comments section of several news reports confirms – to our delight – that most people have recognised this claim to be a load of horse droppings. If Betty had been a more famous nag, say Frankel or Phar Lap, her owner might have acquired some goodwill in her identity and image which could generate income (for example through appearance fees) and be protected at law. And if the selfie had been taken as a result of trespass or subterfuge, that might be different. But absent any extraordinary factors, a photo taken of something or someone clearly visible from a public place (in this case a public footpath) will only rarely be subject to any restrictions.

The law is clear that the author and the first owner of the copyright of a photograph is its creator – and that would appear to be 3 year old Jacob. We hope he has a lovely time on his holiday. We also hope this all blows over pretty quickly for Betty’s owner – judging by the negative press she’s generated, she must be having a ‘mare!

This article contains our thoughts and opinions on an issue of general interest and is written from the perspective of Australian and/or English law. It is not legal advice and is not provided in the context of a solicitor-client relationship. It may not even be relevant to your jurisdiction. No duty of care is assumed or accepted. Please carry out appropriate research and consult with a suitably qualified legal expert before taking any action or making any decisions.