When I was studying law we once had an exam question in which a road accident was described involving the death of a horse. It was surprising how many examinees thought that this would be governed by the Fatal Accidents Act 1976 – legislation which permits relatives of people killed by wrongdoing to seek compensation. No one during lectures had actually said the Act only covered dead humans: in legalspeak it was axiomatic - that is, blindingly obvious.
So does the law confer rights on animals? You wouldn’t have thought that a photograph would shine a light into this fairly arcane area – but it has. I should have written about it when the case was current a couple of years ago but it slipped my mind.
Naruto, or maybe Ella - see text. © David Slater / Wildlife Personalities Ltd
What happened was this. In 2011 David Slater, a British nature photographer, who for some time had been photographing Celebes crested macaque monkeys set up his camera with an electronic remote shutter device near a group of these animals he had been following. He was hoping to get a closer shot of them than he had been able to up until then. It’s not entirely clear how he got the shots in the end because, when they were picked up by national newspapers they were dubbed ‘animal selfies’ which the photographer played along with. Later, his account of the session suggested that his own role had been more significant because he had used a remote trigger release, steadied the tripod and so on.
After the press splash, Wikimedia Commons published the images without licence and when Mr Slater objected they said that he had no copyright because he hadn’t taken the photos: the monkeys had. M’learned friends then got involved. Then PETA (People For The Ethical Treatment of Animals) piled in, claiming that the monkeys themselves owned copyright in the photos.
The case duly went to court in the USA and turned upon the photographer’s input: had he done enough for it to be deemed a “creative act”? The court found in his favour but by then (2017) it was a bit late: Mr Slater thought he could have made about £10,000 from licensing the images but by that point interest had died since everyone had seen them. He has said that he intends to sue Wikimedia but so far proceedings have not been issued.
It’s a sad tale for the photographer but interesting for spectators.
For a start PETA’s argument looks tricky. How can an animal have legal rights? You might say that an animal, under English law, has a right not to be treated cruelly but that is perhaps better seen as a constraint on human action rather than an animal’s legal right. After all, historic buildings also have protection under the law but you would hardly say that that means they have rights. PETA weren’t helped either when it seemed that the monkey they had named as plaintiff, Naruto, appeared not to be the one in the photo. Whoops.
PETA then reached an agreement with Mr Slater under which he would pay 25% of future income from the photos to the organisation. The court was having none of that: PETA was ditching its case (the ‘monkeys have rights’ argument) to enrich itself!
David Slater on location in Sulawesi, Indonesia (photo: © David Slater / Wildlife Personalities Ltd
PETA launched its case in the USA. Mr Slater might be better advised to start any further proceedings in the UK. Case law here* has considered whether “the mere taking of a photograph is a mechanical process involving no skill at all other than the labour of merely pressing a button,” or whether it requires originality. It has identified the following series of acts that can convey originality in a photograph:
the angle of shot, light and shade, exposure and effects achieved with filters, and developing techniques;
the creation of the scene to be photographed; and
“being in the right place at the right time”.
It is these three elements which determine originality rather than the pressing of a button. “Being in the right place at the right time” seems to be a shoo in for Mr Slater.
The case seems like a metaphor for the plight of the modern photographer. When you think about it, quite a few people made money or publicity out of the incident: the lawyers, the expert witnesses, the journalists and other commentators, Wikimedia and PETA. Only the poor photographer, David Slater, has lost out.
*Temple Island Collections Ltd v. New English Teas [2012] EWPCC 1