The Monkey Selfie

The Monkey Selfie

The Monkey Selfie

Thursday, 14 August 2014 20:53

By Vincent Fong & Vera Sung

Wikipedia Commons / David Slater

Selfie: a photograph of one person taken by oneself, usually taken with a digital camera or mobile phone. This word has created quite a buzz on the Internet lately. The rise of the selfie has also created a number of selfie-related legal issues. One example is that of who owns the famous Oscar selfie.

The Monkey Selfie
In 2011, a macaque monkey in Indonesia took a camera from a British photographer, David Slater and took a couple of selfies. One of the selfies has gone viral and made it onto Wikipedia Commons.

Mr. Slater requested Wikipedia to remove the image from its site and stop the unauthorized use of the image, claiming ownership of the monkey selfie. However, Wikipedia has refused to take down the image, taking the view that under the U.S. copyright law, no one owns the copyright to the image and therefore they are free to use the image.

What about the ownership of the selfie under Hong Kong Copyright Law?
Under Hong Kong Copyright Law, an author of a work is the person who creates it. In general, the author of a work is the first owner of copyright in it.

According to the Interpretation and General Clauses Ordinance, “"person" … includes any public body and any body of persons, corporate or unincorporated…”

Therefore, the monkey in this case cannot be an author of the photo, as it is not a “person”. And since Mr. Slater did not create the expression of idea that may be protected copyright, namely the photo, he cannot be the author. 

Further, under Section 178(1) of the Copyright Ordinance, a work qualifies for copyright protection if the author was at the material time:

(a) an individual domiciled or resident or having a right of abode in Hong Kong or elsewhere; or
(b) a body incorporated under the law of any country, territory or area.

A monkey is not an individual nor a body incorporated.  The selfie does not fulfil the qualification requirements, and thus does not qualify for copyright protection.

What about the ownership of the selfie under PRC Copyright Law?

Under Article 2 of the PRC Copyright law, only persons, legal persons or other organizations can enjoy copyright in their work.

As the monkey is not a “person”, it does not enjoy copyright protection in its work. Similar to the case in Hong Kong, as Mr. Slater did not create the photo, he cannot be the author.

How can OLN assist?
OLN and our Intellectual Property team in Hong Kong and Shanghai can assist you with all your copyright and intellectual property issues and in particular, registering and enforcing your copyright in China.

This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.