What we learned about copyright & taking pictures of animals

Taking photos is all about being in the right place at the right time. Spotting an opportunity and framing it into a picture, this is the way the greatest images are created. However, even the best set up is nothing if a subject of the photography misbehaves. David Bellis and his 2yr old son, Jacob experienced this firsthand when Betty, the horse, decided to pose for a photo with them and bared her teeth into an amusing smile. The picture won them a holiday and at the same time caused Betty’s owners to complain over the fact that nobody had asked them for permission to take pictures of their horse.   Public ground, private ground In general, taking photos from public ground, even if the subject of photography is privately owned, is unrestricted. The picture of Betty has been taken from public ground therefore there is not much that her owners can do about it apart from not letting Betty into publicly visible spaces in the future. The same rule applies for taking pictures from private ground when prior consent has been obtained. In this case, however, one must remember that they have to comply with all rules indicated by the owner. The owner can ask to pre-approve pictures or forbid uses of the pictures for certain purposes. There are a few exemptions from the above rules, e.g. taking pictures in Trafalgar Square or Parliament Hill in London is restricted if intended for commercial purposes. Also, you cannot take any pictures of a kind likely to be useful to a person committing or preparing an act of terrorism.   “Please do not photograph me”  What about photographing people? Again, the question of whether they are on public or private ground prevails. If a person is in a public space, you have the right to take a picture, however it must be noted that when the subjects might have a reasonable expectation of privacy, e.g. in a restroom or other intimate situation, you should restrain from photographing. Similarly, you can take pictures of politicians, police officers, and celebrities while on public ground, without asking for consent. A problem arises when such photographing evolves into harassment and persistent or aggressive photography of a single individual is considered as such.  It’s who takes the picture that matters According to Copyright, Designs and Patents Act 1988, the owner of the copyright in the photograph is the person who creates it, and not a subject of it. Usage of a word “person” has caused some problems in the past. David Slater, a British nature photographer, made the headlines around the globe when a curious macaque monkey took his camera and snapped an epic selfie. Animal rights activists argued that it was the monkey, Naruto, who took the photo and therefore he should own the copyright. However, the usage of a word “person” as opposed to an “animal” in the copyright law, is deliberate and rules out the possibility of an animal becoming a lawful copyright owner. Nevertheless, the case has shed light on another issue, namely, if copyright can only be held by a person then copyright to the discussed photo is owned by nobody hence can be freely copied, used and distributed as any other work in public domain.   Are we getting to the point where the animals’ artistic creation should be addressed in the law? Possibly, but in the meantime, we will certainly look forward to seeing more of the animals’ art expressions! Natalia Korek -LawBite Intellectual Property LawBrief. For further legal advice you can contact Natalia via our online legal advice portal.