Photographer Still Insisting He Holds Copyright On Photo By A Monkey, Hints At Possibly Suing Wikimedia
from the test-cases dept
Three years ago, we wrote about the bizarre case of a monkey who apparently grabbed a photographer's camera in a national park in Indonesia and snapped a selfie (that was back before "selfie" was so common a term -- and we just called it a "self-portrait"). There were a few different shots, but the one that clearly got the most attention is this one:Under all three laws, the rules say that the work needs to be done by a person, and a monkey doesn't count. Slater, however, claims that because the camera is his, it's still his copyright. While that's what many people think copyright law says, it's not actually what copyright law says at all.
The latest is that Slater is apparently still considering legal action against Wikimedia for refusing to take down the image from Wikimedia Commons.
The Gloucestershire-based photographer now claims that the decision is jeopardising his income as anyone can take the image and publish it for free, without having to pay him a royalty. He complained To Wikimedia that he owned the copyright of the image, but a recent transparency report from the group, which details all the removal requests it has received, reveals that editors decided that the monkey itself actually owned the copyright because it was the one that pressed the shutter button.First, I should note that if someone thinks the monkey holds the copyright, that's incorrect as well. While it's true that, in most cases, the person who takes the pictures gets the copyright, as noted above, the laws say it needs to be a person, so monkeys don't count. The image is public domain. The "monkey holds the copyright" claim appears to be a mistake by the author of the Telegraph piece. The guy who uploaded it has directly stated that he said there was no copyright (i.e., public domain) because there was no human author.
Mr Slater now faces an estimated £10,000 legal bill to take the matter to court.
From here, Slater tries to flip the burden of proof, and claims that the copyright is his until proven otherwise in court:
“If the monkey took it, it owns copyright, not me, that’s their basic argument. What they don’t realise is that it needs a court to decide that,” he said.While it's true that a court would decide the final result, the burden is actually on the copyright holder. To bring a copyright claim, you first have to prove that you hold the copyright. It's not the other way around. As Sherwin Siy of Public Knowledge notes, a system in which you needed a court to assert an affirmative defense would mean that no one could ever claim self-defense. That's just not how it works.
Slater also seems to believe in an odd "sweat of the brow" concept of copyright that simply isn't relevant:
“That trip cost me about £2,000 for that monkey shot. Not to mention the £5,000 of equipment I carried, the insurance, the computer stuff I used to process the images. Photography is an expensive profession that’s being encroached upon. They’re taking our livelihoods away,” he said.The amount that the trip cost is meaningless on the copyright status of the photo. Photography is an expensive profession, but sometimes, apparently, it's so simple that... well... even a monkey can do it.
That said, the whole "jeopardizing his income" and "taking livelihoods away" lines are pretty extreme and ridiculous. This photo got Slater a tremendous amount of fame, and a chance to capitalize on that. If he wasn't so focused on a misguided legal fight against Wikimedia, why not use the photo as a calling card to get hired to do all sorts of other wildlife shots?
So why is this even an issue again at all? Well, that's partly Wikimedia's fault. It just released a transparency report, which discusses the whole monkey situation in a case study.
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Filed Under: copyright, david slater, monkeys, photography, public domain
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Doesn't he read bloom county?
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Also, no, not setup the lighting itself, but how you use what light is there. As in, what position are you and the camera in, where is the light source, what angle is it, how bright is it? Is the light shining directly vertically down on the subject and am I and the camera in the shade?
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http://www.dailymail.co.uk/news/article-2011051/Black-macaque-takes-self-portrait-Monkey-borrows-pho tographers-camera.html
"Mr Slater left his camera unattended for a while.
One of them must have accidentally knocked the camera and set it off because the sound caused a bit of a frenzy, said Slater, 46.
'At first there was a lot of grimacing with their teeth showing because it was probably the first time they had ever seen a reflection.
'They were quite mischievous jumping all over my equipment, and it looked like they were already posing for the camera when one hit the button.
'The sound got his attention and he kept pressing it
'At first it scared the rest of them away but they soon came back - it was amazing to watch.
'He must have taken hundreds of pictures by the time I got my camera back, but not very many were in focus. He obviously hadn't worked that out yet."
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What if an acorn or something similar fell off a tree and somehow hit the shutter button on the camera, while his back was turned? Would that still be a setup, and would that setup some translate into him getting the copyright? Both there, and with the monkey, no legal person (i.e. a human) took any active steps whatsoever to actually take the photo. With no human participation and with no intent to take photos (since by his account, he put it down, thus logically meaning he was going to take photos himself later on), there is no creative expression going on and thus nothing to copyright.
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And again when you say "something other than" you are suggesting that there is a defined minimum standard for authorship. I say, "Where?"
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Second, dangerous to whom, the monkey? All I'm saying is a somewhat weak copyright claim based on small but valid contributions to the creation of the work beats, no copyright claim at all.
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Second, no decision is made in a vacuum. It's dangerous because, if he would succeed in such an argument, it would imply that the setup is more important than the composition of the photo. I'm not sure many photographers would much care for that decision...
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I also said nothing about setup being more or less important than composition or anything else. I said that some small contribution on a claim beats no claim at all. It's like being the plaintiff in a lawsuit and the defendant not showing up. If there is anything that can be demonstrated to lend validity to the claim, you win by default.
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Except there IS a claim - a claim that the photo is in the public domain, by Wikimedia. But I don't think that's what you meant, so I'll say this:
Copyright is not just a "who did the most" situation. You can have joint authorship of a work. The camera owner is either an author of the photographs or not, regardless of who else might be an author.
If the monkey was instead a person, it's rather obvious that the owner of the camera wouldn't be considered to have done enough to be a joint author of the photographs, unless you think anyone who sets down a camera gets copyright on whatever photos are taken by the next person to pick up that camera. The camera owner did not originally fix the work in a tangible medium, or authorize the fixing of the work in a tangible medium, so he can't be considered an author. It's irrelevant that nobody else can be considered an author. Some things HAVE no author and therefore no copyright. The monkey itself, for example, can be owned but it cannot be copyrighted.
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The photo hasn't even existed long enough for adverse possession to take effect, so it doesn't apply. Also, because Wikimedia is actually using the photo, there is no exclusivity of use, so it wouldn't apply. Additionally, adverse possession doesn't apply to copyright, so it doesn't apply. Furthermore, there IS no copyright in the photo in the first place, so it doesn't apply because there is nothing to apply it TO.
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If you hand someone else a camera that you set up, and they take a picture, they own the copyright (even if you own the film and the camera).
If you hand an animal a camera that you set up, or one takes it without permission, there is no human creator of the work and thus there is no copyright.
Copyright doesn't magically revert to the human who (unintentionally in this case) facilitated the taking of the picture. Your stance seems to assume that copyright must exist in the creation of any work in a fixed medium, but that's not a sine qua non for the existence of a work.
For your stance to be correct, a photographer's assistant who sets up a camera and even the scene of a photograph would own the copyright on a photograph taken by the photographer himself. But this isn't the case and is not recognized by photographers as being the case.
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Most likely it's defined in case law.
I did find this article:
http://www.wcl.american.edu/journal/lawrev/45/versteeg.pdf
It has this quote from a Third Circuit ruling:
I do not think you can treat the monkey as being "authorized" by the photographer to take the pictures. And I don't think you can treat the monkey's actions as "transcription".
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Not so here.
"but as there is not, there is no one else who can make a valid claim for it and thus if he were to show that virtually anything that he did to contribute to it's creation would validate his claim."
So you're essentially saying that copyright falls to the closest person (in terms of both spatial location and in terms of any involvement (if any) they had with the work) to the photo if the photo was "caused" by some non-human agent?
Can you cite where that is in the law?
So let's say I'm out and about with my camera. I put down my camera for a moment, walk behind a tree to take a piss, and an acorn falls off a tree and hits the shutter button. Do I get the copyrights over those photos, even though this scenario is essentially the same as the guy in this article?
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I would say no.
"17 U.S. Code § 102 - Subject matter of copyright: In general
Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression..."
If there is no authorship, there is no copyright. You would still own the physical photo, but nobody would own the copyright on the photo.
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Fair enough. Let's see what the notes on the copyright statute on the Cornell site say.
... well, that wasn't very helpful.
Now I'm just confused, because those phrases seem almost identical.
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Also you are asking me to prove a negative. I said I don't believe there is a defined threshold for that amount. In fact the rejection of the "sweat of the brow" argument by the courts would suggest that the courts concur that no such threshold exists. You are the one suggesting that such a threshold exists and that this case does not meet that threshold.
In your example with the acorn, it is possible that you could make that assertion that he copyright belongs to you and I don't see where there would be a problem with that.
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No, I am asking you to prove a positive. You said that "there is no one else who can make a valid claim for it and thus if he were to show that virtually anything that he did to contribute to it's creation would validate his claim.""
That is a positive claim. I'm asking you where in the law it says that in the case of a dispute over copyright, the author (and thus copyright holder) shall be identified as being the person who contributed even the tiniest bit towards the photo.
"In your example with the acorn, it is possible that you could make that assertion that he copyright belongs to you and I don't see where there would be a problem with that."
How so? I have no intention of taking a photo at that time. Perhaps I'm there intending to take a photo of a rare bird. When I put down the camera (because it's heavy), I am not making any effort towards any type of creativity. I merely put it down (coincidentally enough with the camera switched on). I have made no moves towards framing, lighting, subject, anything at all. When the acorn falls, that is due to gravity. Nature has acted and caused something to hit the shutter button, thus causing an image to be recorded on a fixed medium.
I have nothing whatsoever to do with this photo. I am behind a tree relieving myself. It is nature that has taken the photo, not me, and since nature is not ever considered a legal person, it cannot be counted as an author. Since there is no author for this photo, there can be no copyright applied to it. (Same here with the monkey, it's a thing from nature that is not considered a person in legal terms)
I am of course free to do whatsoever I want with the photo, since it is public domain (including charge for it), but I cannot take someone to court when they use it without my permission.
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So, either he did it and it makes him a fucking liar or the monkey did it, and there is no copyright to be had.
Either way, he is a massive dick.
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This doesn't make sense. You can't 'lose' something you never had. If a court HAD determined that he didn't own the copyright, then he never had it to 'lose'.
Copyright is only 'automatic' if certain conditions are met, such as being the author of the work. If you aren't the author of a work, you didn't get the automatic copyright at creation of the work.
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Really, photography is the red-headed stepchild of art, which is why photographers are the most obnoxious defenders of copyright. They know they're barely in the door.
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Only for some photographers.
What amuses/annoys me about many photographers and their absolute assertion of copyright is that in many cases all they did was point a camera and press the shutter, but had nothing to do with creating the mise-en-scène, or any of the patented or copyrighted objects, nor, often, did they get prior permission from the people in the photo. Yet the photographer think that they did something amazing by pressing the shutter, and that all the creativity in the photo - almost all of which, in the case of many urban photos or photos of staged events, was created by **other people**.
As a photographer, I'm sympathetic to people wanting credit, compensation and control of their work, but if they want that they need to grant the same to all of the IP that's *in* their work, very few of them do. They shouldn't ask or expect what they themselves do not give.
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Re: Only for some photographers.
And I am one of those photographers that concentrates more on creating images instead of capturing moments. Though there is an art into positioning yourself in the right place at the right time to allow you to be able to capture a particular image.
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Re: Only for some photographers.
Who cares if the object is patented? Having a patent on something does not mean you get to control pictures of it.
Whether an object is copyrighted may or may not matter depending on the exact use, but I will say that if you build a building, then even if you hold a copyright on the design, don't expect to be able to prohibit people from taking pictures of the skyline. And if you sell a sculpture to a city so they can put it on the sidewalk, you're not allowed to complain when people take pictures of it.
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Re: Re: Only for some photographers.
Might want to tell the NY Port authority that
https://www.techdirt.com/articles/20140730/06563228056/ny-port-authority-claims-to-own-nyc-skyli ne-tells-store-to-destroy-skyline-themed-plates.shtml
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Re: Re: Only for some photographers.
I agree, but I think that when some urban photographers obnoxiously assert total copyright over an image, and sue over fair use, they fail to awknowlege that their image is a derivative work, comprised of the work of everyone who created all of the objects in the photo. I mention patents only incidentally, to note how much IP a simple photo can encompass.
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But they did not make any creative decisions with regards to a particular photo that you took, so I don't think there's any way they could reasonably claim copyright on it.
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there *CAN* be, but 99.99% of the time, there isn't...
proof?
the monkey taking the picture...
QED
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1) As the monkey has proved capable of (intentionally?) creating this art, is the monkey a person?
2) Is the monkey suing for copyright infringement?
Of course, if the monkey is considered a person, then he's guilty of theft of a camera, even though he returned it. Because he took the photo using stolen property, any copyright claim is likely null and void.
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monkey selfie??????
Looking at the pic, I have a VERY hard time accepting that. It's too sharp, too composed, and too well lit for a 'selfie'. (Says who? Says 30 years with a camera between me and the world around me.)
Can someone come up with independent corroboration who took the pic?
No?
Well, okay then. Copyright goes to the photographer.
Now. Tell me again why all the brouhaha?
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Re: monkey selfie??????
I actually think there's a decent chance that Slater really did take the pic for that very reason.
But he made it famous by claiming the monkey took it... and that messes up his copyright claim.
He could go back now and claim he really took it, but then people would call him out for lying originally. Quite a pickle if true.
But, either way, as long as he has claimed he didn't take the photo, you're wrong. You don't automatically default to assuming it is copyright to the photographer. That's not how the law works.
At all.
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The traditional example of copyright estoppel is where an author presents fiction as fact, and is thereby estopped from later claiming that there is a copyright. When you say it's a fact, people are entitled to rely on that.
Here, if he's been claiming that the animal took the picture, I don't see a good reason why he ought to be able to change his position now, after people have been relying on it.
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Re: Re: monkey selfie??????
Has Slater mentioned any cropping/colorising/sharpening of the original image?
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A fair bit, I'd think, and it still wouldn't affect the underlying picture's status. Remember, just because it's a derivative work, that doesn't mean that section 102 doesn't apply (assuming US law); the derivative material standing alone has to be an original, creative work. Trivial alterations won't suffice.
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Re: monkey selfie??????
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Re: monkey selfie??????
http://www.dailymail.co.uk/news/article-2011051/Black-macaque-takes-self-portrait-Monkey-b orrows-photographers-camera.html
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Re: monkey selfie??????
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Re: monkey selfie??????
Any person can take amazing pictures if they take hundreds of pictures and just pick out the lucky ones. Any good photographer will tell you that they take tons of pictures and keep only a percentage. It's vary possible that the monkey got lucky.
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i know when i first got 'into' photography to some extent, way back in high school, i was actually very UNimpressed that 'professional' photographers would take rolls and Rolls and ROLLS of pictures to glean ONE that was worthwhile...
frankly, kind of made it seem like it WAS a random process where you just take a thousand pictures, and ONE will turn out 'okay'...
(yes, OF COURSE, i am aware that photogs can and do all sorts of stuff to set up the picture, etc, especially in studio settings; but they STILL took hundreds of frames, bracketing exposure, etc, to get one good shot...)
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That is, essentially, the process. You can tilt the odds to make a great photo more likely, but it's still a pretty random process.
A friend of mine was a professional artsy photographer, and he told me that the artistic part of photography is not so much in the actual taking of the pictures -- it's in the ability to recognize a great picture when you see it.
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I just picked up my $700 SLR, turned it on, held it at arm's length pointed at my face, and pushed the shutter button. The photo was perfectly in focus (or nearly so at least). As long as he had the camera/lens set to autofocus with a wide angle lens, it's not at all surprising to get some well focused shots. As for composition, it could be cropped, and for lighting it was outdoors in daylight. Dead simple to get good lighting.
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Re: monkey selfie??????
By the way, why on Earth would this guy even try at this point to claim that he, not the monkey, took the photo?
1) It ruins the selling power of the photo. Suddenly it's gone from '1 in a million shot' to 'Meh, it's an OK picture of a monkey.'
2) It's devastating to any possible credibility should this ever go to court. 'So, Mr. Photographer, for many many years you've claimed that you should have the copyright on this photograph that you claimed a monkey took. Now, when it's quite convenient to your case, you claim that actually it was you that took the shot. Tell me, have you been lying for the last few years or are you lying now? Why should the jury believe a word you say?'
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Re: monkey selfie??????
Apparently you have no idea how modern cameras work.
Copyright goes to the monkey.
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Other kinds of shutters?
How about a thief triggering a motion detecting camera? Set aside any silly copyright claim by the thief in an effort to keep the camera footage out of court. If the camera owner posts the photo on his blog page, would the thief be in his rights to demand the photo be taken down because the thief, having "pressed the shutter", is the copyright owner?
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Re: Other kinds of shutters?
With the monkey picture, however, the photographer didn't even do the framing.
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But thats not his story, his story is the monkey stole his camera and took pictures.
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Re: Other kinds of shutters?
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Time to retire the lance...
Under his theory if he loans his camera to his sister in law for a vacation he owns all the photos she took.
He's stuck up against a conundrum of copyright law. He should just accept the quirks and move on. Time for him to stop jousting and windmills.
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Re: Time to retire the lance...
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Well ... perhaps he should have considered that before he gave his equipment to the monkey.
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Did he post it on Facebook?
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Shakespeare?
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Re: Shakespeare?
eg: Transformers: Age of Extinction = five monkeys, ten minutes.
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Re: Shakespeare?
But your copyright would be totally unenforceable. Copyright allows for two identical works to be created independently and have two separate copyrights.
The problem with your example is that to enforce your copyright against someone, you would have to prove they copied your version of shakespeare, and not the original. That would be really hard to do unless they admitted it.
This of course ignores the DMCA, which allows you to claim copyright on anything and demand it be removed from the internet.
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I represent the subject of your photograph, Mr. Bobo. You have not a signed waiver from my client to distribute said photograph or likeness. We therefor request $1000 for every primary distribution made by you and $250 for every copy from that photograph.
Or you can send a check to me for only $2500.
Please act accordingly,
Yours truely,
J. Steele, esq.
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Re:
And that opens up another can of worms. If that photo had been taken in California, would the monkey hold the "publicity rights" to the photo?
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No, actually, (as mentioned in this very article), we looked at all relevant laws: the US, UK (where the photographer is from) and Indonesia (where the photograph was taken): https://www.techdirt.com/articles/20110713/11244515079/can-we-subpoena-monkey-why-monkey-self-portra its-are-likely-public-domain.shtml
Under all three laws, the photo is in the public domain.
What if the country in which he took the picture says that whoever owns the camera owns the picture and that his copyright claim in the United States is based on having an existing copyright claim in another country?
As noted, we already looked into that.
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I disagree. The commenter did not set up any lighting (the couple probably set the camera's flash to be off or on before handing over the camera, and the position of the sun was determined by when the couple asked the picture to be taken.) The couple's pose was entirely their "creative work" (if you can call two people standing next to each other and smiling "creative"... it's been done literally millions of times, but whatever.) The lining up of the shot was restricted by the couple's instructions that the couple be in the foreground and the lighthouse in the background. Perhaps the EXACT lineup of the shot was up to the commenter, but how much creativity went into that vs the other aspects of the picture?
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As an aside, the next time this happens to me, I'm going to intentionally be a dick and not tell them about the copyrights until after I've taken the photos, just to see what their reaction will be. Of course I have no intention of trying to enforce what would be my copyrights (since I'm anti-copyright after all).
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Or you could get them lined up and then start to run away with the camera.
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Yup
However, I've not heard of an actual lawsuit on this basis.
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Re: Yup
Here there are no statutory damages for non-commercial infringement, so as the photographer has surrendered all copies of the image and is thus incapable of deriving any profit from its distribution would strongly suggest that there wouldn't be any damages for personal use.
There might also be some room to argue that the subjects in such a situation were themselves joint authors, albeit with only a small contribution to the total authorship (depending on how much creativity was applied by the photographer).
[1] Worse, what about the more onerous so-called "moral rights" that exist in Europe and elsewhere?
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This is why photographers can use wedding pictures that they take in their portfolio because they own the copyright to them, and not the bride and groom (assuming there wasn't a contract that specifically reassign the copyright from photographer to the wedding party)
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100% correct. Which is exactly why I didn't hire a professional photographer for my wedding.
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This is different from a situation where you ask someone to take a photo with a specific subject and a specific background at a specific time of day with a specific camera set to specific settings. I am thinking that if you asked three people to take that photo, at least two of them would be functionally identical (assuming there wasn't a technical problem like not holding the camera steady.)
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Now, if I was a guest and I was taking random pictures with my own camera, I would on them, but I'm not too sure about the cameras left on the tables by the bride and groom. In a sense, when you use those cameras you are agreeing to use them on behalf of the bride and groom so I wouldn't really think that I would own those copyrights either.
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Again, you should read the details of works for hire: http://www.law.cornell.edu/uscode/text/17/101
Now, if I was a guest and I was taking random pictures with my own camera, I would on them, but I'm not too sure about the cameras left on the tables by the bride and groom. In a sense, when you use those cameras you are agreeing to use them on behalf of the bride and groom so I wouldn't really think that I would own those copyrights either.
You wouldn't think that, but you're wrong. If you take the photos, even if the wedding party owns the camera, the copyright is yours.
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A 'work made for hire' is ... a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.
Other than that, it has to be by an employee. A mere photograph won't qualify.
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Time to call Chief Inspector Jacques Clouseau...
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Let me stop you right there: It doesn't. It goes to the person who made the creative decisions. If I give my camera to a stranger and instruct them to take a picture of me while holding the camera at a particular angle while I strike a particular pose, then I would likely own the copyright because I'm the driving force behind the photo, even though I didn't press the shutter. In the case of a motion-activated camera, you would at least have the creative choice of where to put the camera.
But in the monkey case, the photographer claims the monkey grabbed the camera out of his hand. There's no creative process that he went through to get those photos. He didn't decide what to take a picture of, when to take it, what the alignment of the camera should be, or even that a photo should be taken at all. Simply owning the equipment doesn't give him anything more than ownership of the physical photo itself.
Nobody made any creative decisions, so nobody has the copyright.
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It's not irrelevant at all. It's the main point. Admittedly, the amount of creativity that has to be employed is pretty small, but it does have to exist to a discernible degree.
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In the case of stolen smartphones, it also doesn't matter if you direct anything at all. If you are able to recover data from your phone and there are selfies of the thief on that phone you can use those pictures to prosecute and you can even publish those pictures in the media and there is nothing they can do about it because the thief doesn't own in the picture.
Creative control can be an argument, but it's not a requirement.
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And in case that's not clear enough, Section 202:
If a thief or a monkey steals your phone and starts taking pictures, you are obviously not the author of those pictures. And so you do not have the copyright.
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Court?
I hear tell that the Three Stooges, The Marx Brothers, and Abbot and Costello are vie-ing for the parts of 1. the lawyers, 2. the private detectives, and 3. the monkey in a proposed 'made for TV' action/comedy/thriller. Their agents all claim their clients to be the best choice for each part, and won't take no for an answer. They also wish to thank their Disney brand flux-capacitor for making them available.
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Not a Monkey selfie
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Edison claimed to own the copyright on all phonographic recordings, and was moving to similarly claim all motion pictures. Imagine how the world would have turned out if patent holders or equipment owners had prevailed in those claims.
Today that claim would be even stronger. There is a lot of art, not just obvious decisions, in designing an image sensor and software. The guy pressing the 'shutter' button isn't really doing much of creative work -- he could be replaced by a monkey.
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That's really funny. I sometimes wish there was a LOL button for the articles themselves.
I don't know about anyone else, but if I made my living from using both photographic equipment and copyright, I'd do everything in my power to be well-versed at both. Just sayin'
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Devils Advocate
Now for the question... If the photographer looked through the "hundreds" of photos the monkey took and picked one and post processed it, can he legitimately claim copyright on the resulting POST PROCESSED image?
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1) The camera owner set the stage for the photo to be possible.. he charged the battery and inserted it, along with a memory card, into the camera - technically he could argue that "assembling" those into a working camera was the equivalent of pushing a button... The same concept as setting a timer.
2) He did not purposefully push the button to take the photo - so anything captured at all that was not a direct and deliberate act is also in the public domain. Ie: security camera footage; photography/video equipment with any kind of automatic recording; recording equipment being left on accidentally; etc. ...All of those would be in the public domain too, since the photographer/videographer did not "push the button" to create the work.
It could be argued that taking a photo of something is stealing from the public domain - unless the photographer is in a studio with completely artificial lighting that he setup himself - since the photographer did not create the sun or the rays of light emitted by it (which went on to be reflected off of the objects that he is imaging). In essence, the light from the sun is public-domain that no photographer can own.
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#2) In all these cases, the copyright would belong to the one who started the camera (or the one who directed it to be started in a work for hire situation).
No, taking a photo of something is not stealing from the public domain. Anyone else can still go out to take and publish all the monkey pictures they want. The copyright only exists for that particular photo and all its derivative works.
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And what if an assistant handled the rather non-technical details of charging the battery and inserting the memory card? Or if airport security had removed and re-inserted them for some reason?
It's not the same as pushing a button or setting a timer, anyway. Pushing the button or setting the timer will result in a picture being taken. Merely assembling a camera does not result in a picture being taken. Otherwise Kodak may as well have the copyright.
No. Just no. You may as well claim that the photographer is stealing oxygen because he's breathing on public land. The rays of light are not part of the photograph anyway - they only cause a chemical reaction on the film. When you view the photograph later, totally different rays of light are reflected to allow you to see it.
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Let's not be silly
The article's assertion the image belongs to no one or to everyone might make sense in a ideal world of pure philosophy, but we don't live in that world. Everything of even theoretical value has to belong to SOMEONE, and Mr. Slater is the best candidate.
Laws? Laws are interpreted and re-interpreted all he time. There just hasn't been precedent set for this circumstance yet. I'm guessing there will be.
(You, in the back! A question?) Yes, I am a former professional photographer. Why?
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Nice attempt to confuse the issue...
Having your camera stolen by a monkey might make you "involved" but it doesn't make you an **author** for purposes of copyright.
By your own attempt at copyright, the camera manufacturer was "involved," too. And they spent wayyy more money developing the camera than Slater did buying it, plus the airline that got him to Indonesia, the customs official who stamped his passport, his local guide, the waitress who served drinks in the hotel bar... they were all "involved" in the making of the photo...you gonna argue they also have copyright?
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Re: Let's not be silly
First, it's not that theoretically every HAS to belong to someone, it's that everything CAN belong to someone.
Second, their argument is not that the copyright belongs to no one but rather, that it belongs to everyone.
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Re: Let's not be silly
That's not how the law works.
The article's assertion the image belongs to no one or to everyone might make sense in a ideal world of pure philosophy, but we don't live in that world. Everything of even theoretical value has to belong to SOMEONE, and Mr. Slater is the best candidate.
That's simply not true. It does not have to belong to anyone. That's simply false. And, no, Mr. Slater is not the best candidate and that's not (at all) how copyright works.
Laws? Laws are interpreted and re-interpreted all he time. There just hasn't been precedent set for this circumstance yet. I'm guessing there will be.
Yes, but laws aren't just made up. You're wrong.
Yes, I am a former professional photographer. Why?
Where did you study copyright law?
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Re: Let's not be silly
I mean yes, I thought it was genuine for most of it, but that last line really gives it away I'd say.
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I think he was completely serious.
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Read the original article
https://www.techdirt.com/articles/20110712/01182015052/monkeys-dont-do-fair-use-news-agency- tells-techdirt-to-remove-photos.shtml#c1498
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Question
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Re: Question
Our current laws do not anticipate this sort of thing - there would probably have to be a court case to decide, unless a new law was passed defining it. I am frankly not even sure if a truly self-aware AI is even possible for us to build or that aliens exist (or if they do, that they're close enough to ever contact us - if FTL is impossible then they'd have to be awfully close) so your scenarios may well never come up.
No. First of all, the monkey did not intentionally take the photos - it likely did not even know what the camera was. There was, therefore, no authorship, no creativity, and no copyright.
Second, our laws are simply not set up to treat animals equally - and that's as it should be. Otherwise we'd have to become vegetarians to avoid murder, neutering your pet would be a horrible sexual assault, and driving over a squirrel would be a hit-and-run unless you reported it to the police. Not to mention the legal trouble the animals would be in, for everything from trespassing to public nudity to failure to file tax returns. Both us and them are better off with them outside the system.
Third, even if you assigned the monkey the copyright, what do you think it would DO with that copyright? It's not capable of understanding the concept. It has no use for money even if it were capable of somehow selling the rights to the photo. It wouldn't understand how to use the court system to enforce its rights even if the courts allowed it, and it wouldn't be able to effectively communicate with a lawyer either. So the result would be either that the photo is locked up and unusable because of an unobtainable copyright, or the photo is freely distributed because everyone knows there's no way a lawsuit could actually be filed.
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Copyrights
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Re: Copyrights
Did you read this explanation of why the photographer doesn't have any copyright in the photos?
https://www.techdirt.com/articles/20110713/11244515079/can-we-subpoena-monkey-why-monkey-self -portraits-are-likely-public-domain.shtml
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Re: Copyrights
If this is so clear, then can you please support the assertion?
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Copyright
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Those are works for hire (look up "copyright work for hire" if you don't know what that is).
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Copyright
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Pictures don't always belong to the person who take them
Now, what happens if someone steals my camera and take pictures? I still own it and there are plenty of precedents which prove it. The theft of smartphones is becoming increasingly common and one of the methods of tracking them down and prosecuting thieves is the use of selfies taken by thieves. Even though the thief took the picture, they can't tell the media to take the picture down because they own it. The true owner in this case is the owner of the device not the person in pushed the button. If the thief owns the picture it would be increasingly difficult to prosecute or publish.
Now, in the case of an animal taking this picture that is still ambiguous, suppose a trip wire was used to take a picture instead or motion sensor. The animal is still physically pushing the button. That's how many wildlife photos were taken and the copyrights are protected just fine. So is it really important how the animal took the picture? Does the act of stealing the camera in and of itself make the difference versus a motion sensor? I can't find a precedent for that one, but it does seem fairly obvious that the spirit of law sides with the wildlife photographer if not the exact phrase. My point is that there are many examples of people owning a picture that they didn't push the button for.
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Re: Pictures don't always belong to the person who take them
Right, that's a "work-for-hire" situation. The monkey picture is not a "work-for-hire" situation because there is no legal way for the monkey to be an employee.
Anytime I take a picture on behalf of someone else that person owns the copyright instead of me.
Not true. You actually do own the copyright.
If someone asked me to take their picture with their camera and there just happens to be a Yeti in the background I can't claim ownership of the picture just because I pushed the button.
Yes, you could claim copyright of the picture. You my not be able to demand the physical picture (or the negative or the SD card) itself, but that is different then holding the copyright.
Now, what happens if someone steals my camera and take pictures? I still own it and there are plenty of precedents which prove it. The theft of smartphones is becoming increasingly common and one of the methods of tracking them down and prosecuting thieves is the use of selfies taken by thieves. Even though the thief took the picture, they can't tell the media to take the picture down because they own it. The true owner in this case is the owner of the device not the person in pushed the button. If the thief owns the picture it would be increasingly difficult to prosecute or publish.
I believe that that the thief would actually own the copyright in this case. But you are slightly conflating physical possession and copyrights. The thief wouldn't own the physical media the picture is on because it was obtained unlawfully, but still may actually own the copyright of the picture.
Now, in the case of an animal taking this picture that is still ambiguous, suppose a trip wire was used to take a picture instead or motion sensor. The animal is still physically pushing the button. That's how many wildlife photos were taken and the copyrights are protected just fine. So is it really important how the animal took the picture? Does the act of stealing the camera in and of itself make the difference versus a motion sensor? I can't find a precedent for that one, but it does seem fairly obvious that the spirit of law sides with the wildlife photographer if not the exact phrase.
When setting up a shot using a tripwire, the photographer still is controlling the creative elements of the shot - framing, lighting, etc. It been pretty much settled that the photographer owns the copyright in those cases. The monkey picture isn't like that though - the monkey's creativity provided those elements, not the photographer who has admitted he turned his back and the monkeys took his camera and started shooting pictures.
My point is that there are many examples of people owning a picture that they didn't push the button for.
Not as many examples as you may think. In most cases, whoever pushed the button owns the copyright, unless it was a work-for-hire situation.
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Re: Pictures don't always belong to the person who take them
That's works made for hire, which is defined here: http://www.law.cornell.edu/uscode/text/17/101 (scroll down to the bottom). It is very specific and has very, very specific conditions.
None are met here.
Anytime I take a picture on behalf of someone else that person owns the copyright instead of me.
That's absolutely 100% false. Not what the law says.
Now, what happens if someone steals my camera and take pictures? I still own it and there are plenty of precedents which prove it.
You own the camera, but the thief would hold the copyright on images he took. You're wrong.
Even though the thief took the picture, they can't tell the media to take the picture down because they own it.
No, they can't tell the media to take it down because of fair use. But, yes, in most of those cases, the thief holds the copyright on the selfie.
The true owner in this case is the owner of the device not the person in pushed the button. If the thief owns the picture it would be increasingly difficult to prosecute or publish.
Learn what fair use is.
Now, in the case of an animal taking this picture that is still ambiguous
No. It's not. The law is clear. It needs to be a human.
My point is that there are many examples of people owning a picture that they didn't push the button for.
No. There aren't.
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Re: Re: Pictures don't always belong to the person who take them
Even in countries without fair use, there's generally an exception for court proceedings, especially criminal ones. The police, for example, are allowed to possess drugs and all manner of contraband and/or private property for the purpose of holding them for evidence. Certainly they're allowed to possess or copy a photograph for the purposes of prosecuting a theft, regardless of the copyright status of the photograph.
But yeah, even if that didn't apply, fair use would. The "purpose and character of the use" factor would be so heavily in favor of fair use that it pretty much overrides the other factors.
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