Betty keeps horsing around!

Article  \  30 Mar 2016

No doubt you’ve heard about the copyright case involving a monkey’s selfie? Well now we’re talking horses.

UK travel company Thomson recently ran a competition called ‘Blue Monday’ with smiling as the theme. Designed to brighten up the day regarded as the most depressing of the year, entrants were asked to submit selfie photos that made them smile. Five lucky winners would each receive a £2,000 holiday voucher.

One of the entrants was David Bellis. He and his three year old son Jacob happened to be walking past a paddock and took what turned out to be a winning photo of themselves with a horse called Betty in the background. David and Jacob were on public land, but the horse was on private property when the photo was taken. 

Betty’s owner claimed she never gave consent for the photo of Betty to be taken, and on hearing about the prize awarded to David Bellis, sought a ‘token gesture for the win’. She also threatened to lodge a complaint against the organisers of the competition to remove David Bellis and his son as winners of the competition.

This begs the question: can Betty’s owner claim ownership of the photo and a share of the prize? Under Australian law (the Australian Copyright Act 1968 (Cth) section 10 (Copyright Act)), Betty’s owner cannot claim ownership of the photo—the photographer (in this case, David Bellis) owns the photo and may use it for any number of purposes, including entering a competition.

However, this doesn’t mean you can walk on to someone’s property and take a photo of their pets for the purpose of entering a competition. This would most likely be considered trespass and the landowner could take appropriate legal action against you. They could also be granted an injunction to prevent your use of the photo for the purposes of entering a competition or for public display (ABC v Lenah Game Meats (2001)).

There are other legal issues worth considering in a case like this, such as the laws surrounding invasion of privacy. According to the Arts Law Centre of Australia, there is no restriction on taking photographs of people (or animals) on private land from public property. In the case Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) for example, it was noted that there is no ‘freedom from view’. In other words, it is not illegal to photograph people on their property from a public location if what is captured in the photograph can be seen from the street—providing you are not interfering or being a nuisance to a person’s right to use or enjoy their land and the photos are not indecent, though. In such cases criminal charges could apply.

Betty has since been moved to an undisclosed location and is no longer available for selfies, autographs, interviews or smiley faces.