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What if Ella the Selfie – Taking Monkey Were an Employee?

Come on!  A monkey selfie!  Did you see this story about the legal battle over ownership of a photo taken by a monkey who stumbled upon a camera in the jungle?  I can’t resist posting the photo on this blog and lucky enough, I can even find a

What if Ella the monkey was employed?

What if Ella the monkey was employed?

work law angle to talk about it.

For example, did you know that the Law of Work is the first labour and employment law text (at least in Canada if not the world) to include a dedicated chapter on intellectual property law and work.  It explores the issue of who owns the product of labour, which is an interesting legal subject that crosses employment and IP law.  Chapter 32, IP Law and Work, is one of my guest author chapters and is written by three lawyers from Fasken Martineau (May Cheng, Sarah Goodwin, Mark Bowman).

So think about this:

What if Ella the monkey was an employee, and during her shift she took a famous and valuable photo.  Would Ella own the photo? Would Ella’s employer?  

Let’s acknowledge at the outset that a monkey is not an “employee” in Canada, even though animals clearly do ‘work’ for humans.  Animals are regulated by various animal protection statutes, but they cannot enter into legally binding employment contracts.

But let’s not let that little legal snag stop us from exploring how the law would treat this photo IF Ella the monkey were an employee.  If it helps you, imagine Ella is a woman instead (though that’s clearly less fun).

The relevant statute is the federal Copyright Act.  That legislation grants exclusive ownership  in “original expression”, including photographs, for a defined period of time, usually the owners’ life time plus 50 years.  Sadly for Ella, as is the case in the USA, it appears that only a human or entity with a legal personality (i.e. a corporation) can own copyright in Canada, since copyright can be owned only by a “citizen” or “person ordinarily resident” in a country that has signed the Berne Convention.  But, again, let’s leave that clear legal affront to animal legal rights aside for now.

The Copyright Act includes a specific section dealing with ownership of works created by employees.  It’s found in Section 13(3):

Ownership of copyright

13. (1) Subject to this Act, the author of a work shall be the first owner of the copyright therein.

Work made in the course of employment

(3) Where the author of a work was in the employment of some other person under a contract of service or apprenticeship and the work was made in the course of his employment by that person, the person by whom the author was employed shall, in the absence of any agreement to the contrary, be the first owner of the copyright, but where the work is an article or other contribution to a newspaper, magazine or similar periodical, there shall, in the absence of any agreement to the contrary, be deemed to be reserved to the author a right to restrain the publication of the work, otherwise than as part of a newspaper, magazine or similar periodical.

Usually the “author” of a work owns copyright, but an exception is created in the case of employment in which the employer is presumed to own copyright provided the work was “made in the course of employment”.  See for example Hanis v. Teevan, where the Court of Appeal ruled that Western Ontario University owned software developed by its employees. Therefore, if taking photographs fell within Ella’s job functions,  her employer would own the photos, unless there was some agreement otherwise.

However, if taking photos was not part of Ella’s job functions, and she just happened to snap a photo while at work, that photo would not have been made “in the course of employment”.  Ella would own that photo.

Note though that if Ella was an independent contractor and not an employee, she would be presumed to own the photo, unless there was an agreement in writing (s. 13(4)) otherwise. Also, even if an employer owns the work, the author/photographer retains a legal right known as moral rights.  Moral rights reserve a certain limited bundle of rights to the original author over the “integrity” of the work (Section 14.1).  The moral rights provisions would grant Ella the right to credit for the photo, for example, and certain rights to prevent the use of the photo in commercial activities over which she objected.  Moral rights can be waived by express agreement.   That’s why some employment contracts include clauses saying that the employee waives his or her moral rights over works created in the course of employment.

You can read the application of the moral rights provisions to an employment situation in this case called Dolmage v. Erskine, in which the employer was found to have violated the employee’s moral rights over a case study he wrote when it reduced his credit form author to “prepared by”.

The moral of the story is that, under Canadian law, an employer is presumed to own work created by an employee “in the course of their employment”, unless there is agreement otherwise.  However, there can be interesting disputes over the meaning of “in the course of employment”.  For example, Chapter 32 of my text opens with discussion of a colossal American battle over the ownership of the Bratz doll, which was created by an employee of Mattel whose job it was to design clothes for Barbie.  Are you kidding me? What a great teaching case.  Does Mattel own the Bratz doll created by its employee?  The answer is discussed in Box 32.1 on p. 422.

Issue for Discussion

The Copyright Act presumes that the author of a work owns it, but then reverses that presumption in the case of employment, granting presumptive ownership to the employer when the work is created in the course of employment.  Is that a reasonable approach, in your opinion?

Can you think of other situations in which the law is concerned with the question of whether something was done “in the course of employment”?

Cross-Reference to Law of Work Book

Chapter 32 examines copyright, patents, trade secrets, and other forms of intellectual property in relation to employment and work.





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