IP ENSight | 2 August 2017

Monkey see, monkey do (not own copyright)

by Waldo Steyn

Two unusual copyright stories are back in the news.

The first is the one that involves a monkey, a selfie and a copyright dispute. British photographer David Slater visited Indonesia to photograph the endangered crested black macaque, seemingly with a view to highlighting the species’ plight. During the course of taking his photos, Slater left his camera on a tripod, apparently hoping that the macaques might take selfies. One took the bait and the image became a sensation. When the photo appeared on Wikipedia, the photographer asked that it be taken down on the basis that he, the copyright owner, had not consented to its use by the online encyclopedia. Wikipedia’s response was unexpected – Slater doesn’t own the copyright, the monkey does!

The US Copyright Office subsequently ruled than an animal cannot own copyright, but then animal rights organisation People for the Ethical Treatment of Animals (“PETA”) became involved and the matter ended up in court. The case is now with an appeals court, which, judging by some of the remarks made by the judges, is somewhat sceptical about the claim that a monkey can own copyright. Slater’s lawyer has queried how one can even determine which monkey took the photo, what financial benefit a monkey can derive from a photo, and what damages have been suffered. In a submission to the court, Slater’s lawyer said this: “Monkey see, monkey do will not do in a federal court.”

The South African Copyright Act (the “Act”) goes back to 1978 – the pre-selfie age – and it’s safe to say that the idea of copyright belonging to animals never entered the minds of the people who drafted it. Section 3 says that copyright is conferred on works of which the author is a person or a juristic person. The Act provides that there is copyright for “artistic works”, a category that is defined to include photographs. The Act uses the concept of an “author”, who, in relation to an artistic work, is defined as “the person who first makes or creates the work” and in relation to a photograph, the author means “the person who is responsible for the composition of the photograph” (our emphasis). 

If that isn’t persuasive, there’s plenty more to suggest that animals don’t have copyright. The Act gives the owner of the copyright in a photo the exclusive right to do or authorise others to do all sorts of things that even the smartest monkey would struggle with – reproduce it, publish it, adapt it, and incorporate it in a film. The owner is able to sue infringers for financial loss suffered. The owner has the power to transfer that copyright, but the transfer must be in writing and signed. Even if ownership is transferred, the previous owner still retains a “moral right”; in other words, the right to object to distortions and mutilations that the new owner makes to the photo and that are prejudicial to the photographer’s honour or reputation. As such, it is quite certain that a monkey can’t enjoy copyright!

The second story is one involving Robin Thicke, Pharrell Williams and the hit song Blurred Lines. We’ve reported on this before – this is the case where the songwriters were successfully sued for copyright infringement by the estate of the late Marvin Gaye, who claimed that the song infringed the copyright in the song Got To Give It Up. The estate was awarded damages of USD7.3-million. 

An interesting feature of this case was that Thicke and Williams were open about the fact that they had been “inspired” by Gaye’s song. They said that Blurred Lines was reminiscent of a particular sound or genre, and in many ways a tribute to a particular musical era. But they maintained that the similarities between the songs were confined to “commonplace musical elements” such as a high falsetto voice and a particular beat. They said that it was perfectly lawful to get inspiration from an earlier song, provided that it wasn’t copied. This argument ties in with a fundamental principle of copyright law, the idea that there is no copyright in ideas but only in the expression of ideas – this is sometimes referred to as the “idea/expression dichotomy”. 

The court, however, accepted the evidence of the expert witnesses and held that actual aspects of the musical work had been copied. Thicke and Williams said that the judgment would set a “horrible precedent” and they may have been proved right. A recent BBC report suggests that the judgment has had a chilling effect on musicians, with some being advised by their lawyers to keep schtum about where they get their inspiration. But as singer-songwriter Laura Mvula says: “We’re all inspired by something, there are influences in everything.”

Some lawyers say that the Blurred Lines decision has been misunderstood. But it’s clearly led to confusion and it’s probably a good thing that it’s been taken on appeal. Let’s hope the appeal court provides some clarity.

 

Waldo Steyn

IP | director
wsteyn@ENSafrica.com
cell: +27 82 382 6404

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