Shoosmiths’ Assim says rise of ‘selfies’ poses legal questions — especially after monkey-gate

Image rights lawyer Gary Assim, head of the intellectual property and creative industries group at Shoosmiths, has warned of a raft of disputes following the rise of the ‘selfie’.

From teenagers posing for photos with film stars on the red carpet and football fans grabbing a shot with their boyhood heroes to monkeys taking photos of themselves on your camera — the rise of the ‘selfie’ poses one burning legal question, says Assim: who owns the copyright?

The photographic phenomenon recently hit the headlines when a monkey selfie went viral, with the image subsequently used by Wikipedia. This incident poses a raft of legal questions surrounding copyright — who owns the image: the monkey or the photographer? Should the image be considered in the public domain?

The photographer in question is David Slater from Gloucestershire. He argued with the internet company that he owns the copyright to the now-famous image taken using his camera. However, a Wikipedia spokesperson said: ‘It’s clear the monkey was the photographer. Since the monkey took the picture, it means that there was no one on whom to bestow the copyright, so the image falls into the public domain.

Assim said: ‘While this would seem like the obvious answer, sometimes the creator of a photo will be the person that sets up or “frames” the shot, not the person that presses the button.

‘If the monkey did create the photo, they are not legal persons so no one would own the copyright and the image would be free for all to use, as Wikipedia suggests. But, according to current UK case law, originality requires a modicum of skill and labour in creating the work and so there needs to be some effort on the part of the creator.

‘In this example, while the exact facts remain unclear, Mr Slater has arguably expended a degree of skill and effort in setting up this image and if this is true he could have a case.’

The law, in the form of the Copyright, Designs and Patents Act 1988, states that the owner of the image is the person who created it. However, the problem with the monkey ‘selfie’ situation is that it is not entirely clear who created the image.

Assim added that there are two issues from this to consider: ‘The first concerns the copyright in images not taken by humans. This issue does not only concern impertinent primates but also other images captured without human intervention, such as software written by computers or use by robots — currently a source of debate in the copyright world.

‘The second concern is with the emergence of the “selfie” as a worldwide trend. It was inevitable that legal issues would begin to crop up. Indeed, the questions raised by the monkey “selfie” are not too dissimilar to those raised following the now-famous “Oscar selfie” — the photo that became the most shared image on Twitter, taken by Bradley Cooper and co-ordinated by Ellen DeGeneres, both of whom could potentially lay claim to the copyright in the resulting image.’