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There's no business like monkey business, 22nd July 2011 - Click for larger version There's no business like monkey business, 22nd July 2011

Not since King Kong rampaged his way through New York has a primate caused such a furore.

The Daily Mail (amongst other papers) recently reported an interesting story of a black macaque that skillfully picked up photographer David Slater's camera and snapped a self portrait complete with wide grin.

The photo was then picked up by the website Tech Dirt and subsequently removed after a cease and desist request from the news agency acting on behalf of Mr Slater. Mr Slater's agents claimed that they owned the copyright to the snapshot. The monkey's keepers disagreed.

This light-hearted and enjoyable story has serious undertones for the SME and its owners, managers and investors. UK copyright can provide a number of banana skins for your business to slip on. Below are five examples, teased straight from Mr Slater's experience:

1. Be aware of employee creations. The monkey may not have been an employee but this issue is particularly relevant for businesses in the creative industries, academic and engineering sectors. There is an economic value in R&D (through tax credits). there is an economic value in patentable inventions. Often the beneficiary of these assets are entirely different parties;

2. Do not despise the value of small things. The value of copyright may not be known at first sight. One could imagine that, had it not been for Tech Dirt's original coverage of the story and the subsequent PR and journalism that followed, the photo would have been considered of little value and no dispute would have arisen. It is prudent to consider the future use and value of copyright before divesting all your rights in the same;

3. Know who owns the work. Part of the story in Mr Slater's situation was that the Copyright Designs and Patents Act 1988, s9(1) defines the author of work as the person who creates it. That is, if you hand your camera to a stranger to take your photo, it is likely that that stranger owns the copyright on the image. The Act is clear though that the author is a 'person', which rules out 'Mr Monkey'. It does not rule out a company. Be careful when engaging with contractors and consultants to undertake work which gives rise to copyright;

4. Know who is using the work. Unlike designs, trade marks and patents, there is limited public information regarding ownership of copyright. With no central registry and searchable database, the auditing, diligence and monitoring of copyright usage has not been without problem. Search engines and software tools are however gaining in usefulness in helping in this regard. E.g. try What Do You Love, the recent offering from Google; and

5. Assert your rights? Unable to speak or indeed, sign his name, Mr Monkey may not have been able to assert its moral rights as author. Ownership aside, the author of a copyright work can still benefit tremendously from the exercise of these non-assignable legal rights. Be careful not to waive them!

For more information on economic rights associated with intellectual property, please contact Philip Hannay.

Last updated: 4.23pm, Tuesday 1st May 2012

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