If Your Business Strategy Relies On Suing Others, You're Not A Business, You're A Leech On The System

If A Kid Grabs Your Camera In The Street And Snaps Some Photos, Who Owns The Copyright

from the well,-at-least-they're-not-monkeys dept

Fri, Sep 9th 2011 5:42pm — Mike Masnick

You may recall, from a few months back, the copyright debate we had going back and forth over the question of whether or not monekys could hold the copyright on some photographs they took. The general conclusion was that they could not, and the photos taken were almost certainly in the public domain, contrary to the claim of the guy who owned the camera, and the news agency he tried to "license" the photos to. That said, what if you have a similar situation involving a human? Photographer Mirjam Letsch has an interesting blog post on her site, in which she notes that while walking through an Indian bazaar with her camera dangling on her shoulder, a kid grabbed the camera and took five quick photos, some of which are pretty nice. Here's just one, but click through to Letsch's site to see the rest:

As she admits in her post:

I really liked the creative result when I later saw these images! Don�t know who owns the copyright though!

While it may depend on the specifics of Indian law, in the US and many other parts of the world, it's likely that the kid almost certainly holds the copyright, technically, though the likelihood of him ever enforcing those copyrights is minimal at best. Similarly, it's unlikely that Letsch holds the copyrights on the images, but thankfully, this doesn't seem like a case where anyone wants to fight over the copyrights, but rather is an opportunity to just see some cool photos taken in under unusual circumstances.

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Filed Under: copyright, india, photos, street

48 Comments

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Anonymous Coward, 9 Sep 2011 @ 5:48pm

Link to the site
Here's a link to the site in question:

http://mirjamletsch.com/?p=3344
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colony, 9 Sep 2011 @ 5:59pm

awww
children + voltage = superb
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Spaceboy (profile), 9 Sep 2011 @ 6:06pm

What if you printed a license agreement on your camera, or attached it somehow, that said something to the effect of "Anyone that takes a picture with this camera hereby grants the copyright on any pictures taken to the camera owner."
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Anonymous Coward, 9 Sep 2011 @ 6:18pm

Re:
That probably would work unless the person taking and using the camera reads and fully understands the contract.
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oneblankspace, 9 Sep 2011 @ 6:27pm

Ill-got(ten) gains
Random minor passerby may own the copyright to the photo, but if the person is recognizable, who owns the rights to the image? There was no model release signed.

In another light, if minor passerby did not have permission to take the camera, he could be in the act of theft. Most jurisdictions in the English tradition do not allow criminals to profit from their crimes (once caught).
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Anonymous Coward, 9 Sep 2011 @ 6:30pm

You need to get out of the house more.
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Pixelation, 9 Sep 2011 @ 6:31pm

Tourists
This makes me wonder who owns the copyright when someone hands you their camera and asks you to take their picture.
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cynicalbrodie, 9 Sep 2011 @ 6:41pm

racist?
i'm offended for the indian kid being compared to a monkey, i know in context it's relevant, or am i being racist because he's indian and because i made that connection? or is it that i've heard other ppl be racist in the context of 'brown' people that if monkey is brought up in a discussion in relation to a 'non-white' person, automaticaly racism ensues, though this has NOTHING to do with this article....
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Anonymous Coward, 9 Sep 2011 @ 6:44pm

Re: Tourists
IANAL, but my guess would be that it would be considered "work for hire" if the person was explicitly asked to take the picture, even if there was no payment involved.
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cc (profile), 9 Sep 2011 @ 6:53pm

I'm not even sure the kid put enough creative input in these pictures to deserve a copyright at all.
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Jeffrey Nonken (profile), 9 Sep 2011 @ 7:18pm

Re: racist?
OK, I can't figure out if this is trolling, deadpan, or clueless.

Due to the phrasing and content I'm favoring "sincere but clueless" but I'm willing to be convinced otherwise.
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Any Mouse (profile), 9 Sep 2011 @ 7:23pm

Re: Link to the site
Yes. He linked to it in the article. Thanks, though.
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HC, 9 Sep 2011 @ 7:56pm

Does the kid or the camera owner own the copyright?

Logical answer: photographs are image records of external conditions, ergo they are NOT a creation of the photographer, therefore the entire concept of a copyright on an un-manipulated image is demonstrably idiotic. A photograph is no more worthy of copyright than a list of yearly average temperatures in Las Vegas.
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Anonymous Coward, 9 Sep 2011 @ 7:58pm

Re: Re: Link to the site
Not at first... but I bet that's hard to tell 2 hours later.
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Aaron deOliveira, 9 Sep 2011 @ 8:14pm

Transformative Use
So what would happen if someone takes the image and does something transformative like the infamous Obama photo?
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kyle clements (profile), 9 Sep 2011 @ 8:19pm

Re:
"...photographs are image records of external conditions, ergo they are NOT a creation of the photographer"

As a photographer, and more importantly, as a fan of photography, I can say that this claim is dead-wrong.

Spend 10 minutes looking through some random facebook photo albums, then look through a great photographer's portfolio and tell me there's no difference.

Composition, exposure, aperture, lens selection, colour balance, lighting, posing, etc. all have a significant effect on the final image. Each of these factors involves a creative decision that alters the scene in some way to create the photograph.

Saying a photograph is undeserving of protection is like saying a realistic painting is undeserving of protection, because like a photograph, realism also just an un-manipulated image.
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Anonymous Coward, 9 Sep 2011 @ 8:35pm

All that these blurry snapshots prove to me is that there is at least one group of monkeys who can take much better photos.
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BeeAitch (profile), 9 Sep 2011 @ 8:46pm

Re: racist?
yes
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Anonymous Coward, 9 Sep 2011 @ 8:53pm

Re:
The camera itself owns the copyright!
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Anonymous Coward, 9 Sep 2011 @ 9:11pm

All of this is for nothing, because Techdirt has already taught us today that photographers aren't really artists, and that their work is on par with someone operating a photocopy machine.

http://www.techdirt.com/articles/20110902/03151515777/photographs-are-mechanical-represe ntations-facts-thus-should-have-only-thin-copyright-protection.shtml

Therefore, the *THIN* copyright on these images isn't worth fighting over.
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G Thompson (profile), 9 Sep 2011 @ 10:24pm

Re:
Contract law does not work like that. There is no consideration in that contractual statement (ie: What's in it for the kid in this instance) and most likely there is no implied acceptance of the contract, especially if he has no ability to read the writing, nor understand it. Also the child is a minor and unless the contract is for necessities is likely unenforceable because their is no capacity to enter into a contract.

The kid under the Berne Convention controls the copyright but as Mike states it is highly unlikely that he would ever enforce those rights. It's still necessary to attribute the work to the child (John Doe) though.
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G Thompson (profile), 9 Sep 2011 @ 10:30pm

Re: Ill-got(ten) gains
It's not theft if the photographer saw the camera taken and allowed the child to take a few shots.

As for model releases unless the photograph is going to be used for commercial purposes, and commercial purposes for photographs do not mean if the photo is sold for profit, as a lot of people think if sold. Commercial purposes for photos means for advertising and promotoin only.

If I take a photo of someone and then sell that photo to a photo collector, magazine, photo gallery, whatever and the photo is not being used to promote anything it is NOT for commercial gain and therefore a model release is NOT required.
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btr1701 (profile), 9 Sep 2011 @ 10:32pm

Re: Re: Tourists
> my guess would be that it would be considered "work for
> hire" if the person was explicitly asked to take the picture,
> even if there was no payment involved.

Payment (or other consideration) is pretty much necessary for the 'hire' part of 'work for hire' to be met.
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G Thompson (profile), 9 Sep 2011 @ 10:33pm

Re: Re: Tourists
Nope they control the copyright in the the photograph since there was no consideration given (ie: no quid pro quo) in them taking the photo.

Now if you handed the person some currency that is then entirely different.
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G Thompson (profile), 9 Sep 2011 @ 10:35pm

Re: Re: Re: Tourists
Looking at the time stamp on both our posts.. Great minds do indeed think alike ;)
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G Thompson (profile), 9 Sep 2011 @ 10:38pm

Re:
Your logic systems have failed, please reboot your brain with nearest heavy object.
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G Thompson (profile), 9 Sep 2011 @ 10:40pm

Re: Transformative Use
Based on numerous court cases recently the answer seems to be dependant on what the judge feels like when waking up the morning of your copyright case.
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Anonymous Coward, 9 Sep 2011 @ 11:27pm

Ironic that that photographer poses the question of who owns the copyright, yet adds the photos to her blog, all the while having a copyright notice at the bottom of her site....and seems to have numerous posts relating to copyright and how people steal her copyrighted images.

So kid committed a crime by "stealing" photographer's film to make copyrighted images. Then photographer steals the copyrighted images for use on her website, is she committing a crime? I see she sells prints, it'd be super ironic if she started selling prints of those photos.
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Anonymous Coward, 10 Sep 2011 @ 2:47am

Mike!
Your using copyrighted material without getting permission and paying for a license!
I'm going to track down that kid and get him to:
i) Send you a DMCA notice
ii) Sue you for willful copyright infringement (Statutory damages baby!)

I'll settle for a few grand though :)
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Rainbird, 10 Sep 2011 @ 4:48am

Obvious?
Surely the kid owns the copyright regardless of who owned the camera, they were his creations even if they were, by most standards, pretty poor photos.
BUT
Without the input from the camera owner they wouldn't exist at all so the owner of the equipment would have a claim for a percentage of any royalties earned (possibly up to 100%).
Or am I being too reasonable?
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Bergman (profile), 10 Sep 2011 @ 6:51am

Re:
It would depend on whether they read it (or knew how to read) before using the camera. If they can't read (a monkey, for example), or can read but can't read the language it's written in (likely that kid), or simply didn't see the text before hitting the shutter button, then they never agreed to the contract terms due to the fact they were not aware of them.
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Bergman (profile), 10 Sep 2011 @ 6:59am

Re:
Unlikely. Use of a photograph for purposes of journalism is covered by Fair Use.

On the other hand, a false DMCA notice is perjury, which will result in prison time on conviction.

Then there's the fact that demanding "a few grand" under threat is coercion/extortion. That's a felony right there, hope you like prison.

If you have no ownership rights to the content in question, then you lack standing to file a DMCA claim. Any DMCA claim filed under those circumstances is a false one. Have fun in prison.
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Bergman (profile), 10 Sep 2011 @ 7:02am

Re: Obvious?
Most likely that's how it would work, except the kid stole the camera to do it, using consumable resources in the process. A few pixels on a memory card isn't a lot of resources, but if the camera was a film camera, then the kid used up something finite. There's also battery charge.

Granted, it's a VERY petty theft, but it is still a theft. Many countries have laws that prevent a thief from profiting, even indirectly, from his crime. Theft does not confer ownership, so it's entirely possible that the kid doesn't own a thing, since the copyrights arose from an act of theft.
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The Devil's Coachman (profile), 10 Sep 2011 @ 7:16am

How many angels can dance on the head of a pin?
That about describes the value of debating stupid shit like this. WTF? Is this really even worthy of reporting, never mind discussing?
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Anonymous Coward, 10 Sep 2011 @ 7:34am

Re: Re:
Sounds like you and G Thompson are describing the average video game EULA situation.
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NullOp, 10 Sep 2011 @ 7:38am

Ownership
They have copyright laws in India? Who knew...
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Beta (profile), 10 Sep 2011 @ 9:29am

it was only a matter of time
Although this photo is clearly inferior to the monkey self-portrait, it is thematically similar.

We have recently seen lawsuits for copyright infringement over less similarity than this.

I think we can all see where this is headed.
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Jay (profile), 10 Sep 2011 @ 1:01pm

Re: Ownership
Stronger copyright really isn't needed in India
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Anonymous Coward, 10 Sep 2011 @ 1:28pm

Re: Re:
And the number of people in prison for bogus DMCA claims is how many?

And how many lawyers are in prison for their part in copyright suit settlement schemes?

If they aren't both big fat zeroes I'd love to know.

(I agree that there should be some btw. The initial post was irony, I forgot you have to make that patently clear on US forums.)
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timmaguire42 (profile), 10 Sep 2011 @ 5:02pm

Copyright? No, the proper term is "evidence."
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Anonymous Coward, 10 Sep 2011 @ 5:49pm

"If A Kid Grabs Your Camera In The Street And Snaps Some Photos, Who Owns The Copyright"

Since the kid stole the camera, I would expect that you beat him bloody and then dragged his ass to the cops. If the parents want to get involved, no problem... beat them bloody too for allowing their child to be a punk. It can be an educational experience for the entire family.

So no copyright for the kid. If it were me, I would just delete the pics and move on. What is the point of baiting a lawsuit. I have better things to worry about.
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anon, 10 Sep 2011 @ 11:02pm

Re: Re: Tourists
In the States, a work isn't "for hire" unless it says so in writing.
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The Devil's Coachman (profile), 11 Sep 2011 @ 6:12am

Re:
Well, if you do bait a lawsuit, and catch a lawyer, you're then entitled to gut, fillet, pan-fry, and eat them. There's an upside to everything. Always look on the bright side of life.
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Butcherer79 (profile), 12 Sep 2011 @ 2:33am

Profit from crime?
The child might own the copyright but cannot make any money from it as it was 'obtained' in the act of a crime - namely stealing the camera. Any profits made as a result of this crime have to be passed on or compensated to the victim of said crime. So it doesn't really matter who owns the copyright as only the camera owner can profit from them.
Or at least that's how it works in the UK.
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Tech84, 12 Sep 2011 @ 6:22am

crime
I don't think so, since the camera was obtained illegally if you take the legal route most probably the rights will be either transferred to you or used as evidence.
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Stephan Kinsella (profile), 12 Sep 2011 @ 8:42am

The kids parents
Minors can't own property, right? So wouldn't the kid's parents own it?

I've also wondered in the past about the situation where you are on vacation and ask some passerby to take a picture of you and your buddies/family--the stranger owns the copyright, though presumably the camera owner has an implied license granted by the stranger...
Such a mess.
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Anonymous Coward, 12 Sep 2011 @ 6:09pm

If the kid who took the camera (seemingly without permission) ever DID sue, and did so in the US, it seems a good argument would be that the kid no longer has any rights to the photos because they are the fruits of an illegal act (the temporary theft of the camera).
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Anonymous Coward, 13 Sep 2011 @ 2:03am

Re: Ill-got(ten) gains
My thoughts as well. If Picasso breaks into my house and paints something on the living room wall, would he be able to claim ownership and charge me for the trouble? No. Whatever he painted would be mine to do with as I wish because it was imposed on my property without permission and in the commission an illegal act.

I could sue him for damages as well as remove and sell the wall as an original Picasso.
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