A case brought in America by PETA brings forward some interesting points for discussion about the creation and subsistence of copyright.

Under UK law the person who creates the photograph will be the first owner of copyright. Usually this a simply question of identifying the photographer who composed and eventually took the shot, but the reference to ‘the person’ means that the monkey will not be able to qualify as the first legal owner of the copyright in the UK.

That leaves three possibilities:

1.The copyright belongs to the cameraman.

The cameraman may seek to claim copyright in the photograph as, although he did not press the button, he took all the other steps necessary to create it. If the photograph had been taken by a human, he may claim it would have been a work of joint authorship, but as monkey can have no claim to the copyright, then the copyright should belong solely to the cameraman.

This position would be supported by the spirit of the law that applies to computer generated artistic works. As it is the computer that creates the work the Copyright Designs and Patents Act 1988 provides that the author of those works should be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken. Whilst not directly applicable here, the section could by implication indicate what principles should apply in this case.

2.Copyright exists in the photograph but no one owns it

As the conditions for creation of the copyright exist, it could be said that the photograph is protected by copyright, but that the copyright does not belong to anybody. This could raise question as to whether the photograph will belong to the crown or whether it could be licensed as an orphan work.

If it is classified as an orphan work, this would the copyright in the photograph to be licensed for a small fee. After 8 years these fees will then be used to offset the costs of setting up and running the orphan works scheme and any surplus funds will then be used to fund social, cultural and educational activities.

3.No copyright exists

The final possibility is the position claimed by Wikipedia and others that have used the photo. That is, unless a person takes the steps to create the photograph, then no copyright could come into existence. This would mean that the work is in the public domain and can be used freely by individuals and business without payment of a further fee.

My preference is for scenario one, but whatever position you feel is correct (either legally or morally), the other major hurdle that PETA has to overcome is to explain why it should be appointed trustee and guardian of the copyright on behalf of the monkey instead of any other third party (such as the reserve).

However laudable PETA’s aims, it is for this reason that I fear that their lawsuit will achieve nothing (other than a little publicity).