The US Copyright Office has clarified its position about photographs taken by animals after a row between Wikipedia and a photographer over a ‘monkey selfie’.

In an update to copyright regulations and practices published this week, the Copyright Office said that works produced by animals cannot be registered for copyright and are therefore public domain. The office also gives
“a photograph taken by a monkey” and “a mural painted by an elephant” as specific examples of occasions where the works cannot be copyrighted under US law.

This policy supports Wikipedia’s argument in a legal battle with British wildlife photographer David J. Slater, whose camera was used by a Macaca nigra monkey for a ‘slefie’ while he was in indonesia, and Wikipedia is therefore within its rights to keep offering the photograph on its website for free.

However, the position of a UK or EU court may be somewhat different. In a rceent piece in the Law Gazette, IP lawyer Katie Edwards says:

“In the UK, in accordance with the Copyright Designs and Patents Act 1988, the author of an original work is its creator and, in the case of a photograph, copyright can be claimed if the image is the author’s intellectual creation.”

Slater’s claim that he owned copyright in the photograph because he flew to Indonesia to capture such images and set up the camera before it was ‘borrowed’ by the monkey photograper did not help his case in the US, but a UK court may see the case differently and possibly even the post-processing of the image by SLater may be sufficient for him to make a claim to be the “author”.

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