Monkey Selfie and Authorship in Copyright Law: The Nigerian and South African Perspectives

CB Ncube and DO Oriakhogba "Monkey Selfie and Authorship in Copyright Law: The Nigerian and South African Perspectives" (2018) 21 PER/PELJ

35 Pages Posted: 19 Dec 2018

See all articles by Caroline B. Ncube

Caroline B. Ncube

University of Cape Town

Desmond Oriakhogba

University of Benin; University of Cape Town (UCT)

Multiple version iconThere are 2 versions of this paper

Date Written: April 9, 2018

Abstract

A photograph taken by a monkey was in the centre of a copyright claim in the famous monkey selfie case in the United States of America. Suing as next friend of the monkey named as Naruto, the People for the Ethical Treatment of Animals contended that copyright in the photograph belonged to the monkey as author of the photograph since the monkey created the photograph unaided by any person. On the motion of the defendants, the case was dismissed by the US district court on the ground that the concept of authorship under US Copyright Act cannot be defined to include non-human animals. The dismissal order was confirmed by a three-judge panel of the US Court of Appeal of the Ninth Circuit. This paper reviews the case in the light of the concept of authorship and ownership, with specific focus on authorship of photographs, under the Nigerian Copyright Act and South African Copyright Act. In so doing, it examines and relies on Ginsburg's six principles for testing authorship to the authorship of photograph under the Acts. It also relies on the concepts of subjective rights and legal personality to explain the implication of conferring copyright ownership on non-human animals. It argues that for authorship of, and ownership of the copyright in, a photograph to be established under the Nigerian Copyright Act and South African Copyright Act, a legal person must have created the photograph. Consequently, for purposes of argument, the paper proceeds on the assumption that the monkey selfie case originated from Nigeria or South Africa. After analysing of relevant statutory provisions and case law, the paper finds that the Nigerian Copyright Act and the South African Copyright Act do not envisage conferral of authorship in particular, and copyright protection in general, to a non-human animal. It then concludes that the courts in both countries would not reach a different conclusion from the one made by the US courts.

Keywords: Monkey Selfie; Authorship; Copyright; Photographs; Nigeria; South Africa

Suggested Citation

Ncube, Caroline B. and Oriakhogba, Desmond, Monkey Selfie and Authorship in Copyright Law: The Nigerian and South African Perspectives (April 9, 2018). CB Ncube and DO Oriakhogba "Monkey Selfie and Authorship in Copyright Law: The Nigerian and South African Perspectives" (2018) 21 PER/PELJ . Available at SSRN: https://ssrn.com/abstract=3300649

Caroline B. Ncube

University of Cape Town ( email )

Private Bag
Rondebosch 7701
South Africa

HOME PAGE: http://www.commerciallaw.uct.ac.za/claw/staff/academic/cncube

Desmond Oriakhogba (Contact Author)

University of Benin ( email )

Ugbowo
Benin City, Edo State PMB 1154
Nigeria

University of Cape Town (UCT) ( email )

Rondebosch
Capetown
South Africa

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