Snippets–Macaques & the Copyright Act

There has been an incident recently where a professional free-lance photographer had his camera “borrowed” by a black macaque and a number of photographs were taken by the macaque, including a “selfie”. Links to various articles are available here and here. The selfie has been made available to the public online contrary to the wishes of the photographer on the basis that the macaque cannot own copyright and therefore the photograph is in the public domain. The photographer asserts the macaque’s actions do not interfere with his claim to copyright ownership. This has raised global interest in the issue of ownership of copyright in such circumstances.

In Australia, the Copyright Act 1968 (Cth) provides that copyright subsists in an original artistic work (such as a photograph) if the work was first published in Australia or the author of the work was an Australian citizen or a person resident in Australia. Further, an “author” is defined as the “person who took the photograph”. While many may consider that a macaque is at least the equivalent of a person, such equivalence is yet to be established at law and it is likely that no copyright would subsist in the photograph under Australian law.

One of the points of contention is whether the macaque’s actions amount to actions which break into the chain leading to a claim of copyright or whether the photographer providing the equipment is enough for the photographer to claim copyright in the circumstances.

It is possible to draw a distinction here between the actions of the macaque actively taking the photographs and automated camera equipment which is set up by the human operator and allowed to operate in accordance with the function of the equipment. Automated equipment is programmed by a person who can then (subject to various other provisions) claim authorship of the outcomes of the operation of the equipment. The equipment then operates without the need for any further intervention, human or otherwise, in accordance with its programming. In this instance, the camera without the macaque’s actions, would have taken no pictures.

To avoid issues of this nature, photographers are recommended to keep control of their equipment and not lend cameras to macaques.

This Snippet contains general information only. It does not constitute legal advice. If you require legal advice in relation to your specific circumstances, please contact me.