19 July 2017

Who Has Copyright to Animal Seflies in Oz – How Much Can a Koala Bare?

Michael Finney

So, you’re in Australia on holiday and you set the camera for an epic souvenir photo, and a drop bear grabs the camera and snaps a social media world class selfie. Now, who owns the copyright of that image?

While an American court is currently agonising over whether an animal can have copyright to selfie photos, the legal situation in Australia is much clearer according to Brisbane intellectual property law expert Michael Finney.

No matter how cute your dog or cat may be, how dexterous they may be without opposable thumbs or how much they monkey around, animals here do not own the copyright in images they snap.

“Under Australian copyright law, the author in relation to a photograph means the person who took the photograph, so in Australia, only humans can own a copyright in a photographic image. Question is though, if no person took the photograph, does anyone own rights in the photograph and if so who?

“Is it the person who set up the camera/ phone for the photo, the person who owns the camera or the person who owns the memory card in the camera? “

Ordinarily, the person who creates intellectual property is the owner of that intellectual property but the ultimate answer depends on many things and even sometimes whether money has changed hands. So the question is something of a grey area.

So if animals can’t be regarded as the owner of a picture, who gets the possible image sales rights?

“In the instance of an animal selfie, like the monkey image at the heart of the US court case, the animal may be the taker of the picture; they just aren’t the owner of the copyright in the picture.

“Who gets ownership is the million dollar question. Does copyright actually exist in a pic taken by a non-human?” Mr Finney said.

The American case centres on selfie images caught on wildlife photographer David Slater’s camera. He claimed copyright but the animal rights group PETA has taken it court arguing that the monkey should own any rights in the image. The case is unique as PETA argues that a monkey can be an owner of an intellectual property right.

Could this happen in Australia with a koala stealing some visitor’s camera and snapping a selfie? And given the enormous popularity of funny animal images on social media, what would happen if someone reproduced an image they found as a funny internet meme?

The owner of the reproduced image would have a legal position if they never granted rights to allow people to reproduce it.

”But If I put a photo on social media, knowing people can “share” that image then there is an argument that I gave consent for the share to occur and thus granted a licence for people to reproduce the image. Also, there are exceptions to copyright infringement that allow people to share images without permission from the copyright owner – such as for the purpose of criticism, review or parody etc.

“But if they do rely on those limited exceptions, they have to follow the copyright laws – there is no general fair use exception to copyright infringement in Australia and a person can’t simply steal the photo,” he said.

If it all sounds a bit silly, consider the story of Grumpy Cat,  cat internet celebrity in America made world famous for her scowling face. A social media photo of her spawned countless internet memes and led to media appearances, book deals and merchandising sponsorship deals as well as a book and calendar.

“Internet animal photos can be very funny but there’s the potential for some serious income there which is why people are arguing over whether a monkey can have copyright to selfies it takes on a camera.

“Whatever the outcome of the American litigation, Aussies are far more pragmatic when it comes to intellectual property. The monkey may have pressed the camera shutter button but the photographer set up the shot… so credit where credit is due,” he said.

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