Monkey Selfies, Elephant Expressionism – is there copyright in Australia in animal generated works?

If you read The Washington Post, The Telegraph, The Guardian or The Age (or any other major newspaper) in mid-August, you may be aware of the dispute between Wikipedia and photographer David Slater concerning the ownership of copyright in a selfie taken by a monkey who, according to the photographer, had ‘stolen’ his camera. If not, you can read about it here.

In Australia, it isn’t necessary to look at the Copyright Act to work out if an animal can own copyright. Not being a legal person, it can’t own anything, and unless it is a wild animal, it is itself property (although no cat has ever acknowledged this).  So who does own the copyright?

In the case of the monkey selfie, no-one.  Section 10 of the Copyright Act defines the author of a photograph as the person who took the photograph.  No person took the monkey selfie, and as a result, like some compilations and computer generated data bases, it has no author, is not a “work” for the purposes of the Copyright Act, and copyright does not subsist in it.

However the Copyright Act does not define the author of other types of works, including paintings. Whether there is copyright in the paintings created by Zoos Victoria elephants displayed here should, in principle, depend on whether a keeper was sufficiently responsible for the appearance of an individual painting to be considered an author.

So even if those monkeys ever did succeed in writing Hamlet, they would not own copyright in it.

The monkey selfie, right, made headlines around the world Photo: David J Slater/Caters

Annette Rubinstein, Former POF Attorney

BA(Hons) LLB(Hons)

Annette has worked in the Legal Policy and Research Department of the Victorian Attorney General’s Department and has practised as a barrister.