How That Monkey Selfie Reveals The Dangerous Belief That Every Bit Of Culture Must Be 'Owned'

from the no-monkeying-around dept

Thu, Aug 7th 2014 11:08am — Mike Masnick

As we wrote yesterday, the infamous monkey selfie has returned to the news, thanks mostly to Wikimedia's new transparency report, which discusses the supposed copyright claim over the following monkey selfie:

Unfortunately, as we noted, the original story in The Telegraph claimed that Wikipedia "editors decided that the monkey itself actually owned the copyright." As we explained in great detail three years ago, this was false. The monkey doesn't hold the copyright: no one does. It's in the public domain. In fact, if the reporter had been careful, he would have noted that even Wikipedia properly notes that the image is in the public domain. It did not claim that the monkey owns the copyright.

However, since a major newspaper (falsely) wrote that Wikipedia had decided the monkey holds the copyright, the whole thing went viral all over again. All over Twitter I saw people claiming that the monkey held the copyright. Unfortunately, this is somewhat pernicious, starting with the Telegraph reporter, Matthew Sparkes, who made the false claim. As Sherwin Siy notes in a very good post, it's very troubling that people now come to automatically believe that someone has to hold the copyright on a photograph. That's just not true:

The claim isn’t that monkeys have IP rights—it’s that no one owns the copyright in the photo. A lot of people seem to take issue with this, insisting that, if the monkey doesn’t own the copyright, the photographer must—that someone has to own a copyright in the photo.

But that just isn’t true.

This is the definition of the public domain—things that are not protected by copyright. We’re used to thinking of the public domain as consisting of things that were in copyright and then aged out of it after a length of time, but that’s just a part of it. There’s also works created by the federal government, and things that simply can’t be protected—like ideas, methods of operation, or discoveries.

I think a big part of the problem here is that we've been trained incorrectly to believe that everything new must be covered by copyright. This is part of the most pernicious aspects of copyright maximalism today -- the idea that everything is covered by copyright. Only a few decades ago, nearly all created works were not covered by copyright and were public domain, free to be shared. It was only with the 1976 Copyright Act that the US switched from an "opt-in" policy to a "nearly everything is covered" policy, leading many people to (wrongly) believe that with any photo someone must hold the copyright.

That's a dangerous assumption for culture, highlighted by the fact that so many people default to insisting that someone must hold the copyright over this photo.

Meanwhile, for an even more amusing take on all of this, don't miss Sarah Jeong's defense of monkey copyrights satirical post:

It’s hard enough to eke out a living as an artist without the Copyright Office butting in and claiming it is literally impossible for you to own copyrights, just because you’re a monkey. What on earth is this “Copyright Office”, anyways? What right do they have to say whether a monkey’s work is worthy of copyright or not?

According to Slater’s own account, the Indonesian macaques were “already posing for the camera” when one of them started taking photos. Not all of them were good – as it turns out, some monkeys are much better photographers than other monkeys. The “monkey selfie” in question is a diamond in the mud: a truly remarkable portrait, perfectly focused and strategically positioned to capture a mischievous yet vulnerable smile. If that macaque had an Instagram account she’d have, like, a million followers.

But she doesn’t, and the sorry state of our copyright law – as interpreted by the Copyright Office and exploited by Wikipedia – is to blame. Due to the backwards treatment of animal creators everywhere, monkey art (and monkey photography in particular) continues to languish. How is an aspiring monkey photographer supposed to make it if she can’t stop the rampant internet piracy of monkey works?

That's only a snippet. The whole thing is well worth a read.

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Filed Under: copyright, monkey, ownership, public domain, selfie

162 Comments

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Reader Comments

The First Word

“

Re: And who owns the copyright on nature?

Now THERE'S a blast from the past.

This statement really shows what has happened.

Once upon a time, England, France, Spain and the Netherlands decided to divvy up the world's real estate between them -- or at least the parts not settled by "civilized" people, as "somebody has to own the land."

They eventually stumbled upon North America, where for the most part, the land was considered a public resource, to be used by all. These countries set up treaties with peoples who had no concept of "real estate" and effectively claimed most of the land. Yet the peoples who already lived there continued to treat the land as a common resource and regularly "poached" and cut down fences.

Eventually these people were herded onto reserves, where they could use their "common resources" within the confines of defined boundaries. Or, they could leave the reserve and join the property maximalists who now owned most of the real estate.

Sound familiar?

—Anonymous Coward

”

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Violynne (profile), 7 Aug 2014 @ 11:10am

I'd like to point out most people weren't trained, but brainwashed.

There's a tremendous difference between the two.
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Anonymous Coward, 7 Aug 2014 @ 11:11am

Re:
Just like monkeys...
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Anonymous Coward, 7 Aug 2014 @ 11:18am

And who owns the copyright on nature?
Clearly God does right? Cuz it can't just belong to nobody...
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Gwiz (profile), 7 Aug 2014 @ 11:32am

That's a dangerous assumption for culture, highlighted by the fact that so many people default to insisting that someone must hold the copyright over this photo.

A very dangerous assumption, for sure.

We even had a commenter on the first story this week who proclaimed themselves a "former professional photographer" who claimed that "Everything of even theoretical value has to belong to SOMEONE...".

https://www.techdirt.com/articles/20140806/07044228126/photographer-still-insisting-he-h olds-copyright-photo-monkey-threatens-to-sue-wikimedia.shtml#c1499"

Apparently, in this person's head, everything in the Public Domain has no value, even theoretical.
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Nihiltres (profile), 7 Aug 2014 @ 11:35am

The monkey trail
There's an even more dangerous assumption hidden there that I've been seeing in comments and such around the web, which is that photos and other such copyrightable works are automatically worth money and that this photographer deserves to "get rich".

If news outlets are licensing the photo(s) for reporting on this controversy itself, I wouldn't be surprised if the photographer has made more money on the controversy than otherwise.
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Michael, 7 Aug 2014 @ 11:36am

Perhaps a monkey cannot own the copyright, but it's clear that any monkey can file a suit for publicity rights violations.
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ChurchHatesTucker (profile), 7 Aug 2014 @ 11:36am

Of course!
If a thing exists, we can find someone to extract rent from it! It's the American Way!
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Gwiz (profile), 7 Aug 2014 @ 11:42am

Re:
Hmm. Weird link fail.

Here is that comment.
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Chronno S. Trigger (profile), 7 Aug 2014 @ 11:43am

How about this?
If it makes everyone feel better then let's just say that the picture is owned by the public domain. And if it makes anyone feel even more better, the public domain is owned by everyone.

If value is determined by ownership, then everyone owning something must be really damn valuable.
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Anonymous Coward, 7 Aug 2014 @ 11:59am

Re: The monkey trail
Generally news outlets have a different set of copyright rules than everyone else. Education is the same way. No need to licence.

The photographer is no doubt getting more attention, but I've see no evidence it was gotten him any money. That's kind of the point of all the hub bub.
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Anonymous Coward, 7 Aug 2014 @ 12:01pm

That IP crap is just monkey business
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Anonymous Coward, 7 Aug 2014 @ 12:03pm

Re:
Yup, and this is why I cringe whenever Mike claims that such "education" campaigns don't work.

This one worked just fine - and the copyright maximalists have been working on improving it ever since.
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Anonymous Coward, 7 Aug 2014 @ 12:08pm

Perhaps we should allow monkeys to hold copyrights...
Although it's true that you cannot get permission from a monkey to use works under such a copyright, a monkey is also incapable of suing people for infringing on his copyright. Monkeys are also incapable of abusing the DMCA. So any copyrights held by a monkey cannot be abused. Perhaps more monkeys need to be held by monkeys. Maybe even all of them.
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Anonymous Coward, 7 Aug 2014 @ 12:11pm

Response to: Gwiz on Aug 7th, 2014 @ 11:32am
So the bible doesn't even have value as the basis of movies or cultural studies? awesome
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Anonymous Coward, 7 Aug 2014 @ 12:12pm

Re: Perhaps we should allow monkeys to hold copyrights...
Perhaps more monkeys need to be held by monkeys.

I have no objections to monkeys holding each other.

But if you meant "more copyrights need to be held by monkeys", then you miss the entire point of the article, which is that just because there is a picture, it does not mean that there has to BE a copyright.
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Anonymous Coward, 7 Aug 2014 @ 12:15pm

Re:
To be fair, he didn't exactly say that the public domain has no value.
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Anonymous Coward, 7 Aug 2014 @ 12:16pm

Track Record
You would think that with the track record of wrong copyright case predictions from several authors on this site, they would learn to predict the opposite of what they instinctively think. I swear. You guys live in an echo chamber. I argued for months in the comments about why I though Aereo, for example, would lose, but all that happened was I got called a troll. Guess I'm not as wrong as you think.

This is a no brainer guys. The photographer owns the photo. You can argue all you want about what you think will or should happen, but it won't change the fact that you're pulling opinions from the sky and seriously reaching for an outcome that won't happen.

Just in the first few comments alone are several simply incorrect statements written as fact. Someone saying that the photographer is getting licensing from news outlet for example show just how half informed many of you are.
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Anonymous Coward, 7 Aug 2014 @ 12:19pm

Re: Re: Perhaps we should allow monkeys to hold copyrights...
I'm suggesting a practical solution to the problem of copyright abuse and I'll take it even further and say we should offer the maximalists a deal. Everything can be copyrighted and those copyrights can be extended to last forever on one condition. Only monkeys can own them.
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Uriel-238 (profile), 7 Aug 2014 @ 12:22pm

Sex tourism these days.
"That trip cost me about £2,000 for that monkey shot."
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Anonymous Coward, 7 Aug 2014 @ 12:26pm

Re: Re: Re: Perhaps we should allow monkeys to hold copyrights...
And NO a person who is the guardian of a monkey cannot be the executor of the monkey's estate with regards to copyrights owned by said monkey (although I'll allow that the person who is the natural parent of a monkey can because if you can pull that one off, you deserve special treatment.)
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Anonymous Coward, 7 Aug 2014 @ 12:28pm

Re: Re:
He stated that if it has value, then someone owns it. It then follows that if no one owns it, then it must not have value. Since no one owns the public domain, by this logic, then the public domain has no value.
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Anonymous Coward, 7 Aug 2014 @ 12:32pm

Premise is faulty...
The public domain is not owned by no one. It's owned by EVERYONE equally. So even if we accept the argument that the image is in the public domain. It is still has a copyright. It's just that that copyright is shared by everyone.
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Anonymous Coward, 7 Aug 2014 @ 12:32pm

Re: Track Record
The Aereo decision was 6-3. I don't think that you can discount a position that 3 Supreme Court justices took as frivolous and clearly wrong.

The photographer owns the photo.

He owns the physical photo, but can he really be considered the author? He didn't have the idea for that particular photo (it was an accident) and he did not even originally fix it in a medium (the monkey did.)

So under what legal theory can he be considered the author? Because he cropped the photo (and would that imply he doesn't have a copyright on the uncropped photo?) Because he selected particular photos from the large number the monkey took (and would that imply that he doesn't have the copyright on any unselected photos?) Because he happened to set the camera down with no intent for the monkeys to take those pictures (and would that imply that if some other person had touched the camera in between, they would have the copyright instead?) Because he owns the camera (and would that imply that you don't have copyright on a photo you take if the camera is borrowed?) Please tell me, what makes him an author here?
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David Muir (profile), 7 Aug 2014 @ 12:32pm

Slater's Income
I am convinced that the original photo is in the public domain. As such, Slater should not be trying to sue anyone. He should just license his cropped version of the public domain photo to anyone willing to pay him for it. Also, I think part of the "value" of the photo is his story about how it was created. His being an insufferable twit and threatening to sue Wikimedia is going to reduce the income potential for him accompanying the photo and relating its story.
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jupiterkansas (profile), 7 Aug 2014 @ 12:35pm

Re: And who owns the copyright on nature?
Prove there's a god and I'll give her the copyright.
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AC, 7 Aug 2014 @ 12:39pm

To take this on a bit of a tangent...
Copyright maximalism has become one of those rare issues that would be better off if it were a partisan issue, since we would all at least have a choice when we go to the polls, but has instead been, for the most part, "bi-partisanally" bad.

With that in mind, I can't think of any ideological** reason why copyright shouldn't act in much the same way as inheritance taxes. That's certainly a partisan issue.

Certain political groups believe that money shouldn't be pass down to the next generation at its current rate without the public getting its cut.

Yet many of those same people have no problem letting a different kind of "property" pass down multiple generations with no public benefit?

"Life plus XX years" copyright laws are just another way of enriching future generations for doing no work, in exactly the same way that gets railed against when we're talking about money!

**There are no ideological reasons, but there are monetary reasons. Hollywood lobbies hard for copyright laws, but not for other types of inheritance. This seems like a rather weak spot in which to call out politicians for their hypocrisy.
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Anonymous Coward, 7 Aug 2014 @ 12:40pm

Re: Re: Re:
I took issue with a couple of his statements when he made them. It's not that everything HAS to be owned by someone it's that it CAN be owned by someone. Also what is in the public domain is actually owned by everyone not no one. So even the public domain is under ownership, just not exclusive ownership. Finally the "of value" part of his statement is irrelevant. Even things that have no value can be owned.
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Chris Rhodes (profile), 7 Aug 2014 @ 12:41pm

Re: Track Record
. . . so are you planning on making an actual argument at some point, or just flinging poo?
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Richard (profile), 7 Aug 2014 @ 12:43pm

Re: Re: Re: Re: Perhaps we should allow monkeys to hold copyrights...
I'll allow that the person who is the natural parent of a monkey can because if you can pull that one off, you deserve special treatment.

How about being the brother of the natural parent of the monkey?
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MonkeyFracasJr (profile), 7 Aug 2014 @ 12:50pm

RE: The photographer owns the photo.
I am guessing that you (and others,) are making the assumption that because the photographer owned the camera he owns the photo. Why would that be the case?
The photo in question is an image created through an organic automated process. No human input was used, no one composed or designed the shot, no one even initiated the shot. No Human (or other "legal" entity) was involved. How can there be ownership?

I am looking for an actual (factual) answer please.
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Anonymous Coward, 7 Aug 2014 @ 12:50pm

Re: Re: Re: Re: Re: Perhaps we should allow monkeys to hold copyrights...
Ok natural parent or other blood relative who is the guardian of the monkey. Is that ok?
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MonkeyFracasJr (profile), 7 Aug 2014 @ 12:51pm

Re: RE: The photographer owns the photo.
This should have been in reply to "Track Record"
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MonkeyFracasJr (profile), 7 Aug 2014 @ 12:52pm

Re: The photographer owns the photo
I am guessing that you (and others,) are making the assumption that because the photographer owned the camera he owns the photo. Why would that be the case?
The photo in question is an image created through an organic automated process. No human input was used, no one composed or designed the shot, no one even initiated the shot. No Human (or other "legal" entity) was involved. How can there be ownership?

I am looking for an actual (factual) answer please.
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Whatever (profile), 7 Aug 2014 @ 12:53pm

Re: Re: Track Record
So under what legal theory can he be considered the author?

It could be considered a work for hire... :)

The Aereo decision was 6-3. I don't think that you can discount a position that 3 Supreme Court justices took as frivolous and clearly wrong.

This is true, but in a democracy their objections are noted by over ruled by the majority, who interpret the law and the situation differently.
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Anonymous Coward, 7 Aug 2014 @ 1:02pm

Re: Re: Re: Track Record
The work for hire argument is pretty silly. It was also made. My argument was that there was not a threshold to prove authorship so practically any valid evidence that he presented that he made a contribution to the creation of the these images, regardless of how small, given the absence of anyone else presenting evidence to make the claim that they were the author would be sufficient to prove authorship.
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Anonymous Coward, 7 Aug 2014 @ 1:08pm

Re: Re: Re: Re: Re: Re: Perhaps we should allow monkeys to hold copyrights...
AC, you missed the Monkey's Uncle reference?

Nicely played, Richard.
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Anonymous Coward, 7 Aug 2014 @ 1:09pm

Re: Re: Re: Re:
It's not that everything HAS to be owned by someone it's that it CAN be owned by someone.

Nope. He quite literally said, “has”:

Everything of even theoretical value has to belong to SOMEONE, and Mr. Slater is the best candidate.

Even things that have no value can be owned.

No one said otherwise. Even if it were true that everything of value must be owned, it does not follow that items of no value cannot be owned.
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Anonymous Coward, 7 Aug 2014 @ 1:13pm

Re: Re: Re: Re: Re: Re: Re: Perhaps we should allow monkeys to hold copyrights...
I was looking for the angle there just didn't see it. I agree. Well played.
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Anonymous Coward, 7 Aug 2014 @ 1:19pm

Re: Re: Track Record
(OP here)

Okay I'll make the argument for why the photographer owns the photo in three minutes.

In the world of content creation, the person who does the work (snaps the photos, designs the content, whatever) does not always automatically own the the copyright. Depending on who owns the equipment and who is paying the money often determines who has claim to copyright if it ever goes to court. For example, if I shoot a photo for TechDirt and TechDirt pays me and also owns the camera, they (generally) own the copyright. But (generally) I could still use it for self promotion.

If in some alternate universe a court ruled that an animal could claim copyright (which isn't going to happen), that doesn't necessarily mean that the animal automatically owns it. In this hypothetical situation, it would be argued that because the photographer provided the equipment, he or she is the true owner of the photo. This would actually be true if we were talking about two humans. The person or object who hit the button is irrelevant.

And EVEN IF in some magical land the monkey was able to get ownership, the monkey would have to give consent to have the photo licensed. So even then Wikimedia doesn't have a valid claim.

So again, you guys can sit here and hash out how you think the world should work, but this is coded into the law and it isn't that difficult. It's pretty clear cut actually. I mean there are random examples of when the stars all align and something strange happens, but it's all mostly predictable.

And for bonus points I'll tell you the argument that Wikimedia's lawyers should and probably will use. Ready...

"Wikimedia is an educational institution and therefore use of this photo falls under fair use." Boom.

Any claim that this belongs in the public domain or that the monkey owns the photo is just hogwash. Pick your battles better.
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Karl (profile), 7 Aug 2014 @ 1:20pm

Re: Re:
Yup, and this is why I cringe whenever Mike claims that such "education" campaigns don't work.

Well, they don't - if the goal of those campaigns is to stop people from engaging in piracy.

It is true that such campaigns may work in indoctrinating people into believing in "ownership culture." (Especially if that campaign is target towards government officials.)

But the ultimate effect is not that people view piracy as "stealing" or "morally wrong." They may be coerced into believing in "ownership culture." They just don't care.

A belief in "ownership culture" that goes against human nature doesn't change human nature. It merely convinces people not to give a rat's ass about "ownership."
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Mike Masnick (profile), 7 Aug 2014 @ 1:30pm

Re: Re: Re: Track Record
So again, you guys can sit here and hash out how you think the world should work, but this is coded into the law and it isn't that difficult.

Could you provide a single citation to back up your claim? I have yet to see a single copyright expert agree with you. So if it's "coded into the law and it isn't that difficult" then you should be able to cite where in the law it says what you claim and present some related case law to support it, no?
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Anonymous Coward, 7 Aug 2014 @ 1:31pm

Re: Re: RE: The photographer owns the photo.
No worries. I caught that (OP for "Track Record" here).

Who owns the equipment actually matters a lot when you're determining the author when there are no contracts.

"The photo in question is an image created through an organic automated process. No human input was used..."

Yeah except there was human input used. The photographer walked his ass out into the jungle with a camera.

As I said to another commenter, in the world of content creation, the person who does the work (snaps the photos, designs the content, whatever) does not always automatically own the the copyright. Depending on who owns the equipment and who is paying the money often determines who has claim to copyright if it ever goes to court. For example, if I shoot a photo for TechDirt and TechDirt pays me and also owns the camera, they (generally) own the copyright. But (generally) I could still use it for self promotion.

If in some alternate universe a court ruled that an animal could claim copyright (which isn't going to happen), that doesn't necessarily mean that the animal automatically owns it. In this hypothetical situation, it would be argued that because the photographer provided the equipment, he or she is the true owner of the photo. This would actually be true if we were talking about two humans. The person or object who hit the button is irrelevant.
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Lord Binky, 7 Aug 2014 @ 1:31pm

Re: Re: The monkey trail
He's going to get a million internet dollars. Don't worry.
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Anonymous Coward, 7 Aug 2014 @ 1:34pm

Re: Re: Re: Re: Track Record
Work-for-hire pretty obviously doesn't apply because the monkey was not legally his employee and did not sign a work-for-hire agreement.

My argument was that there was not a threshold to prove authorship so practically any valid evidence that he presented that he made a contribution to the creation of the these images, regardless of how small, given the absence of anyone else presenting evidence to make the claim that they were the author would be sufficient to prove authorship.

Of course there is a threshold for authorship. I'm not sure why you think there isn't. The threshold has mostly been explored in cases involving co-authorship, but it's still there.

Authorship is not a matter of who did the most. There can be many authors for the same work, or one, or zero. In this case, the photographer's contribution to the photo was simply setting the camera down. That's not enough to be an author. Unless you think that an assistant who picks up the camera and hands it to a photographer should also be considered a co-author.
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Anonymous Coward, 7 Aug 2014 @ 1:35pm

Re: Perhaps we should allow monkeys to hold copyrights...
Perhaps more monkeys need to be held by monkeys.

Can someone please upload this to redtube?
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Anonymous Coward, 7 Aug 2014 @ 1:37pm

Re: Re: Re: Re: Track Record
(OP Here)

The problem with your last statement is that there is a threshold to prove authorship. Like thousands and thousands of hours of legal precedent jargon fun-time reading.
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Karl (profile), 7 Aug 2014 @ 1:37pm

Re: Re: And who owns the copyright on nature?
Prove there's a god and I'll give her the copyright.

If something is of value to human culture, it must be owned by the being that created it.

Therefore, there must be a God, otherwise the picture would be owned by nobody. QED.

It's called the "IP-leological Argument." I think it was first proposed by Thomas Aquinas in his "Summa IPologica" (c. 1274). It's been making a resurgence lately due to proponents of "Intelligent Design Patents."
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art guerrilla (profile), 7 Aug 2014 @ 1:39pm

Re: Track Record
tired inertnet meme to follow:
wow, i am impressed by your prognostication, do you have a newsletter i can subscribe to ? ? ?

1. that the supremes decided 'wrongly' ('wrongly' meaning against the wishes of the large majority, and violating the maxim of 'the greatest good for the greatest number') is probably a better than even bet on ANYTHING...
2. that they used flawed and specious 'reasoning' to pre-determine the conclusion they were hell-bent on reaching, is bidness-as-usual...
3. that they did so by stretching credulity and the meanings of words, is nothing new...
4. at this point, i look to NOTHING the supremes decide as being based on morality or law and the greatest good for the greatest numbers, but simple obeisance to the results Empire EXPECTS out of them...
5. EVERYONE could have predicted they would do *something* to twist the case to their will, but you just never know what bullshit rabbit they will pull out of their hats...
6. in short, they have -as is their wont- rendered 'The Law' meaningless by their tortured logic in reaching the conclusion they WANTED, not the one that was predicated on law, logic, and reasonableness...
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Anonymous Coward, 7 Aug 2014 @ 1:44pm

Re: Re: Re: Re: Track Record
The Copyright Act of 1976.
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Gwiz (profile), 7 Aug 2014 @ 1:50pm

Re: Track Record
This is a no brainer guys. The photographer owns the photo.

If it's such a "no brainer" care to include how you came by that conclusion? Lots of people who are very knowledgeable in copyright law claim otherwise.

You can argue all you want about what you think will or should happen, but it won't change the fact that you're pulling opinions from the sky and seriously reaching for an outcome that won't happen.

I'm not reaching for anything. I really couldn't care less who ultimately ends up (if anyone) with the copyright for a monkey picture. I'm more interested in the discussions that are developing around this issue.
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Lord Binky, 7 Aug 2014 @ 1:51pm

Re: Re: Re: RE: The photographer owns the photo.
It's more realistic to ask who owns the copyright when a person using a rented camera asks a stranger to take a picture of them, such as in front of a monument or whatnot. If there's artistic value, is it in the person taking the shot who lined up the image and chose the best position? Is it the person who owns the equipment? Is it the subject of the picture who rented the camera, chose the general location and their pose?

I don't think there's a real answer there, much less that it would ever have a scenario that it would matter.

Yeah, they guy OWNED the physical objects such as the camera, and the equipment. Until he shared it, he owned the only copy of the image too. Owning something you didn't create doesn't give you the copyright to it though. That's like someone digging up a fossil of a brand new creature and wanting money for anyone that depicts it in any image ever. The person dug it up, they used their tools, they picked the location. They didn't do anything artistic though.

Really, this guy doesn't have anyone to blame but theirself though for squandering an easy profit from a random picture that they found on their equipment. If they sold it for a decent amount to a big corporation they would have been fine. Not that the corporation would have any more rights over the image than an individual, but that no-one would want to have to fight an entitity with expendable money in court over such an issue.
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Anonymous Coward, 7 Aug 2014 @ 1:51pm

Re: Re: Re: Track Record
"In the world of content creation, the person who does the work (snaps the photos, designs the content, whatever) does not always automatically own the the copyright. Depending on who owns the equipment and who is paying the money often determines who has claim to copyright if it ever goes to court. For example, if I shoot a photo for TechDirt and TechDirt pays me and also owns the camera, they (generally) own the copyright. But (generally) I could still use it for self promotion."

In those cases there is a contractual agreement (even if it isn't written) prior to the creation that supersedes the assignment of copyright under the Copyright Act of 1976 or similar laws in other countries so that example does not apply here.

"If in some alternate universe a court ruled that an animal could claim copyright (which isn't going to happen), that doesn't necessarily mean that the animal automatically owns it. In this hypothetical situation, it would be argued that because the photographer provided the equipment, he or she is the true owner of the photo. This would actually be true if we were talking about two humans. The person or object who hit the button is irrelevant."

This is just plain wrong. Ownership of the equipment has absolutely no bearing on copyright.

"And EVEN IF in some magical land the monkey was able to get ownership, the monkey would have to give consent to have the photo licensed. So even then Wikimedia doesn't have a valid claim."

Unless the DOJ wants to try to charge someone with criminal copyright infringement for infringing on a monkey's copyright (which is even a sillier concept than the idea of the monkey owning the copyright in the first place) the monkey would have to file a lawsuit seeking damages for the infringement for that to even matter and that is if the law allowed monkeys to file lawsuits. (I wouldn't be surprised if Prenda might be willing to file it for the monkey though.)

"Wikimedia is an educational institution and therefore use of this photo falls under fair use."

That would probably work in US courts but the photographer is British and if he chose to file his case in the UK under UK law, there is no fair use.

Care to try again?
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Anonymous Coward, 7 Aug 2014 @ 1:53pm

Re: Re: Track Record
How edgy. I'm glad to know you're smarter than the smartest people in our legal system.

Like I said, I won't waste (much) time arguing here. I'm trying to find a fact in your statement to dispute, but it's mostly just rambling.
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Anonymous Coward, 7 Aug 2014 @ 1:54pm

Re: Re: Re: Re: Re: Track Record
What is that threshold? Where is it defined?
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Anonymous Coward, 7 Aug 2014 @ 1:56pm

Re: Re: Re: Re: Re: Track Record
Wow, you're such a good advocate of your position.
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Gwiz (profile), 7 Aug 2014 @ 2:00pm

Re: Re: Re: Track Record
In this hypothetical situation, it would be argued that because the photographer provided the equipment, he or she is the true owner of the photo. This would actually be true if we were talking about two humans. The person or object who hit the button is irrelevant.

That is incorrect. Here are the words of a lawyer who specializes in copyright and photography:
In general, when the shutter is released, the photographer who pressed the button owns the copyright.
Source

And EVEN IF in some magical land the monkey was able to get ownership, the monkey would have to give consent to have the photo licensed. So even then Wikimedia doesn't have a valid claim.

Those who are claiming the monkey owns the copyright are also incorrect. No one owns the copyright - it's in the Public Domain.
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Karl (profile), 7 Aug 2014 @ 2:02pm

Re: Re: Re: RE: The photographer owns the photo.
For example, if I shoot a photo for TechDirt and TechDirt pays me and also owns the camera, they (generally) own the copyright.

No, they don't. You would own the photo. Techdirt would only own it if you signed a contract with them (before taking the photo) saying that it's a work for hire.

(You could, of course, assign the copyright to them at any time, but you would still be the original author under copyright law.)

See, for example, this interview with Carolyn E. Wright, LLC:

Q: Who owns the copyright in a photograph once it is taken?

In general, when the shutter is released, the photographer who pressed the button owns the copyright. An exception is when the image falls into the "work-made-for-hire"(also known as "work for hire") category. A work-made-for-hire relationship is created in two situations: (1) the photographer is an employee hired to take photographs for the employer - an example would be a photojournalist who is an employee of a newspaper but not a wedding or portrait photographer who is hired for one event; or (2) the photographer is hired to provide photographs for collective works or compilations and signs a written agreement that specifically states that the work is to be considered a work made for hire. Therefore, freelance photographers are subjected to work-for-hire status only when they agree to it contractually.
- http://blog.kenkaminesky.com/photography-copyright-and-the-law/
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Anonymous Coward, 7 Aug 2014 @ 2:07pm

Re: Re: Re: Re: Re: Track Record
Wow. Glad you cleared that up. Having a little problem following you though. Could you please quote the parts that support your statement?
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Anonymous Coward, 7 Aug 2014 @ 2:08pm

Re: Re: Re: Re: Track Record
If it in the public domain everyone owns it not no one.
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Anonymous Coward, 7 Aug 2014 @ 2:08pm

Re: Re: Re: Re: Track Record
Finally someone who knows how to debate! Ownership of the equipment absolutely matters when determining who owns the copyright. Ownership of equipment is one determining factor on whether a person is an employee or an independant contractor. Once that is settled, it's an easy walk to ownership of content.

I will concede that different laws in different countries muddy the waters.
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Anonymous Coward, 7 Aug 2014 @ 2:09pm

Re: Re: Re: Track Record
In the world of content creation, the person who does the work (snaps the photos, designs the content, whatever) does not always automatically own the the copyright.

True, but they often ARE found to be the copyright owner, if they did anything creative (and the next block doesn't apply.) If the person is just transcribing a speech verbatim, then the person giving the speech would probably get the copyright and not the transcriber (and not the person who owns the pen or the microphone.)

For example, if I shoot a photo for TechDirt and TechDirt pays me and also owns the camera, they (generally) own the copyright.

Only if you are an actual TechDirt employee, or have a signed work-for-hire agreement, or a signed copyright transfer. Who owns the camera does not matter, except so far as it shows whether the photo was taken "for" TechDirt. (If, as their employee, I use one of their cameras, it would take a lot to show that I wasn't working for them while taking the photo; but if I was using my own camera, I could use that as evidence that I wasn't on the job at the time - but it's only evidence, not proof.) But that doesn't apply to a monkey, because the monkey is not an employee and presumably is legally and physically incapable of signing anything.

it would be argued that because the photographer provided the equipment, he or she is the true owner of the photo

So if I film a movie using rented equipment, the equipment rental store gets the copyright? I think not. Anyway, the photographer does own the physical photo... he just doesn't own the copyright to the photo.

And EVEN IF in some magical land the monkey was able to get ownership, the monkey would have to give consent to have the photo licensed. So even then Wikimedia doesn't have a valid claim.

In that magical land, they'd get away with it because only the monkey could protest; but I agree that the monkey can't get the copyright.

"Wikimedia is an educational institution and therefore use of this photo falls under fair use."

If it ever got to the point of a lawsuit, I'm sure they would argue that as a backup. They'd win on some fair use factors and lose on others, and who knows how it would go if it came to that.

but this is coded into the law

Citation needed. Seriously, if you're right I want to know where this is in the law.
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Anonymous Coward, 7 Aug 2014 @ 2:09pm

Re: Re: Re: Re: Re: Re: Track Record
Is the source not valid or does it simply not fit your world view?
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Anonymous Coward, 7 Aug 2014 @ 2:15pm

Re: Re: Re: Re: Track Record
OP Here

Not according to Community for Creative Non-Violence v. Reid.

"In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.
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Anonymous Coward, 7 Aug 2014 @ 2:15pm

Re: Re: Re: Re: Re:
I know what he said and I thought some of that is dumb. Or perhaps he just worded it poorly. Still if we took exactly what he said to be true, "that everything of value must be owned" (which I think believe is false as stated) that doesn't mean that the public domain isn't of value as the public domain IS owned, just not exclusively. It's owned by everyone equally.
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Anonymous Coward, 7 Aug 2014 @ 2:17pm

Re: Re: Re: Re: Re: Re: Track Record
Mostly defined in the Copyright Act of 1976, but I'm sure that won't suffice as a valid source if it goes against your personal views.
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Anonymous Coward, 7 Aug 2014 @ 2:17pm

Re: How about this?
the public domain is owned by everyone.

But that's communism!
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Gwiz (profile), 7 Aug 2014 @ 2:18pm

Re: Re: Re: RE: The photographer owns the photo.
For example, if I shoot a photo for TechDirt and TechDirt pays me and also owns the camera, they (generally) own the copyright. But (generally) I could still use it for self promotion.

In addition to Karl's comment you are also wrong about using it for promotion too. If Techdirt holds the copyright, then you have absolutely no rights to copy or distribute the photo unless Techdirt grants you a license or otherwise agrees to let you do so.
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Anonymous Coward, 7 Aug 2014 @ 2:22pm

Re: Re: Re: Re: Re: Re: Re: Track Record
Since you're being intentionally stupid: when supporting your position, simply pointing at a document does nothing.
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Anonymous Coward, 7 Aug 2014 @ 2:23pm

Re: Re: Re: Re: Re: Track Record
"Finally someone who knows how to debate!"

I have to mark your comment as funny after you previous "citation" to back your claims.

Could you please quote the part of the Copyright Act of 1976 that says ownership of equipment has anything to do with ownership of copyright?
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Anonymous Coward, 7 Aug 2014 @ 2:24pm

Re: Re: Re: Re: Track Record
(OP Here)

Yep. Everything you said is right.

For sources it's the Copyright Act of 1976, but I'm getting mad hate for pointing that out from everyone else here.

Regarding the ownership of equipment (I had to look this one up) the court case you want to reference is Community for Creative Non-Violence v. Reid.

"In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party."

In short it's not dissimilar from unemployment claims.
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Anonymous Coward, 7 Aug 2014 @ 2:25pm

Re: Re: Re: Re: Re: Re: Re: Track Record
Uh... what part exactly?
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Anonymous Coward, 7 Aug 2014 @ 2:28pm

Re: Re: Re: Re: Re: Re: Re: Re: Track Record
I'm not being intentionally stupid, but I do feel like several commenters on this site are disregarding my COMPLETELY VALID SOURCE for copyright law. If you don't like what it says, fine. But don't act like it isn't a valid answer to a request for a source.
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Anonymous Coward, 7 Aug 2014 @ 2:31pm

Re: Re: Re: Re: Re: Track Record
That is part of determining whether a person is an employee or not. If I hire someone contractually to perform a service, they are not my employee. They are contract labor. Are you seriously trying to argue that he was the monkey's EMPLOYER? Really? Bwaaaahahahahaha!
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Anonymous Coward, 7 Aug 2014 @ 2:37pm

Re: And who owns the copyright on nature?
Now THERE'S a blast from the past.

This statement really shows what has happened.

Once upon a time, England, France, Spain and the Netherlands decided to divvy up the world's real estate between them -- or at least the parts not settled by "civilized" people, as "somebody has to own the land."

They eventually stumbled upon North America, where for the most part, the land was considered a public resource, to be used by all. These countries set up treaties with peoples who had no concept of "real estate" and effectively claimed most of the land. Yet the peoples who already lived there continued to treat the land as a common resource and regularly "poached" and cut down fences.

Eventually these people were herded onto reserves, where they could use their "common resources" within the confines of defined boundaries. Or, they could leave the reserve and join the property maximalists who now owned most of the real estate.

Sound familiar?
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Anonymous Coward, 7 Aug 2014 @ 2:37pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Track Record
The whole document doesn't really help. You kinda need to narrow it down a bit.
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Anonymous Coward, 7 Aug 2014 @ 2:38pm

Re: Re: Re: Re: Re: Re: Re: Re: Track Record
Chapter 2
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Anonymous Coward, 7 Aug 2014 @ 2:38pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Track Record
Chapter 2 might be a good start.
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Lord Binky, 7 Aug 2014 @ 2:40pm

Re: Re: Re: Re: RE: The photographer owns the photo.
The copyright owner is unlikely ever care or similarly even find out that someone uses a copy of the photo they took but don't own the copyright to in their portfolio. Seems like something fair use would cover if it wasn't huddled in the corner hoping not to get beat up again.
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Anonymous Coward, 7 Aug 2014 @ 2:40pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Track Record
Armaments, Chapter 5 Verses 9-21...
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Anonymous Coward, 7 Aug 2014 @ 2:41pm

Re: Re: Re: Re: Re: Re: Track Record
(OP Here)

Ownership of equipment isn't mentioned in the Copyright Act. But it is relevant on whether an person is an independant contractor or employee.

The specific case regarding equipment is Community for Creative Non-Violence v. Reid.

"In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party."
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Anonymous Coward, 7 Aug 2014 @ 2:44pm

Re: Re: Re: Re: Re: Re: Track Record
Every single time I've mentioned the Copyright Act of 1976, everyone freaks out like I'm intentionally being difficult.

IF YOU WANT A SOURCE FOR THE LAW, THE SOURCE IS THE ACTUAL LAW.
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Anonymous Coward, 7 Aug 2014 @ 2:45pm

Re: Re: Re: Re: Re: Track Record
Like I said below. Are you seriously trying to argue that the monkey is his employee?
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Anonymous Coward, 7 Aug 2014 @ 2:46pm

Re: Re: Re: Re: Re: Re: Track Record
No not at all. I'm trying to argue against the point that since the monkey hit the button, the photographer doesn't have ownership.

Who hits the button is irrelevant.
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Karl (profile), 7 Aug 2014 @ 2:46pm

Re: Re: Re: Re: Re: Track Record
Not according to Community for Creative Non-Violence v. Reid

That case dealt with whether the person was a subcontractor or an employee. This would determine if the work was a "work for hire" or not. The ownership of the equipment was only used to determine that relationship, and it was only one factor out of many. And, in fact, it was used as evidence against a "work for hire" relationship (since the subcontractor used his own equipment).

So, no, merely owning the equipment does not confer any sort of copyright ownership. It has absolutely no bearing on who would ultimately hold the copyright to the photo, unless Slater claims that the monkey was "an employee [working] within the scope of his or her employment" (17 USC 101).
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Anonymous Coward, 7 Aug 2014 @ 2:51pm

Re: Re: Re: Re: RE: The photographer owns the photo.
No no no. Who owns the equipment is a factor on whether a person is an employee or an independant contractor. Determining whether a person is an employee or an independant contractor determines whether the work was for hire or not... thus determining copyright ownership.
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Anonymous Coward, 7 Aug 2014 @ 2:52pm

Re: Re: Re: Re: Re: Re: Re: Track Record
I can own equipment, hire you under contract and loan you a piece of equipment to do it and you are still not my employee. Ownership of the equipment is merely a FACTOR TO BE CONSIDERED in determining whether the relationship between a laborer and the person hiring him is an employer/employee relationship or not. That doesn't say that if I own the equipment the person is necessarily my employee.
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Lord_Unseen (profile), 7 Aug 2014 @ 2:53pm

Re: Re: Re: Re: Re: Re:
You're forgetting the sentence directly before that one. He says; "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." He specifically includes it belonging "to everyone", the public domain. It's very clear from that sentence, and the one after it, that he believes the public domain has no value.
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Anonymous Coward, 7 Aug 2014 @ 2:54pm

Re: Re: Re: Re: Re: Re: Track Record
Correct. And determining whether a person is a contractor or an employee determines whether the employer or other party owns the copyright.

True, it's not the only factor, but I'm just trying to argue against this idea that since the monkey hit the button, the photog doesn't own it.
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Anonymous Coward, 7 Aug 2014 @ 2:56pm

Re: Re: Re: Re: Re: Re: Re: Re: Track Record
I'm not trying to say it's the *only factor. I'm just arguing against the idea that since the photog didn't hit the button he automatically doesn't own the copyright.
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Anonymous Coward, 7 Aug 2014 @ 2:57pm

Re: Re: Re: Re: Re: Re: Track Record
Like I said below..

No not at all. I'm trying to argue against the point that since the monkey hit the button, the photographer doesn't have ownership.

Who hits the button is irrelevant.
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Anonymous Coward, 7 Aug 2014 @ 2:59pm

Re: Re: Re: Re: Re: RE: The photographer owns the photo.
See Lord Blinky know what he's talking about.
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Anonymous Coward, 7 Aug 2014 @ 3:05pm

Re: Re: Re: Re: Re: Re: Re: Track Record
Look. If you ran a photo studio where you owned the property and all the equipment and you hired me to work in your photo studio under a verbal agreement. Then later I tried to claim that I owned the copyrights to all the images I took while working there because I was hired under a verbal contract instead of working as your employee, that citation might be relevant to the case. If the court found in your favor that you owned the copyrights it would be because I was your employee not because you owned the camera. Owning the camera would only be evidence to support your claim that I was your employee and not a contractor.

For that to apply to this case you would have to be arguing that the fact that he owned the camera indicated that the monkey was his employee and therefore he owns the copyright due to the work for hire definition provided in the Copyright Act of 1976. So again I ask is that really the argument you are trying to make?
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Anonymous Coward, 7 Aug 2014 @ 3:09pm

Track Record (Later Guys)
Well that was fun and you all confirmed my suspicions that the vast majority of you don't know what you're talking about. My favorite part was when everyone started asking for sources and then got all mad when I provided one that didn't fit their personal views. Here's a hint, if you're going to debate Copyright Law, the source is the current copyright law - not some random blogger.

I won't make the same mistake I made with the Aereo case though which was that I constantly came back for more debate. I was right about that and I'm right about this. It's so obvious it hurts. My second favorite part was people telling me why the supreme court was wrong. Okay have fun with that.
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Anonymous Coward, 7 Aug 2014 @ 3:18pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Track Record
Well, I'll agree with you that far. Who hit the button is not the only thing that determines who has copyright. If I transcribe the words of a blind author, that doesn't mean I'm a co-author, even if I'm the one actually fixing the work in a medium.

But it's not just that he didn't hit the button, it's that he also didn't do anything else. He had to contribute some originality, and not just a camera.

Chapter 2 might be a good start.

That narrows it down a little. The relevant portion seems to be in section 201(a):

Copyright in a work protected under this title vests initially in the author or authors of the work.

Which doesn't seem to help much... the entire argument here is who is the author.

I can't help but notice this passage in section 202:

Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied.
(emphasis mine)
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Mike Masnick (profile), 7 Aug 2014 @ 3:26pm

Re: Re: Re: Re: Re: Re: Re: Track Record
Correct. And determining whether a person is a contractor or an employee determines whether the employer or other party owns the copyright.

You don't seem to have the slightest clue how copyright law actually works, do you?

As Karl told you, this *only* matters in works-for-hire situations, which (contrary to what many believe) is a very specific set of circumstances, not even remotely in play in this case with the monkey.

So, let's go back to the initial question: can you cite a single piece of case law or a *specific article in the law* that supports your position?
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Anonymous Coward, 7 Aug 2014 @ 3:29pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Track Record
section 202
Oh look, a citation!
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Anonymous Coward, 7 Aug 2014 @ 3:30pm

Re: Track Record (Later Guys)
My favorite part was when everyone started asking for sources and then got all mad when I provided one that didn't fit their personal views

It wasn't that we don't accept your source as valid - the actual law is obviously a valid source for the law. It was that you wanted us to search all of Title 19 of the US Code to find some unspecified passage that you think supports your views. That's not reasonable. Saying "Chapter 2" is a bit better but still leaves us to guess what portion you meant. It's very difficult to get anywhere if I think you mean that the relevant part is in section 201(a) but you actually think it's in 204(b)(2) and don't say so.

My second favorite part was people telling me why the supreme court was wrong.

The supreme court can be wrong. Sometimes it even reverses itself.
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That One Guy (profile), 7 Aug 2014 @ 3:37pm

Re: Track Record (Later Guys)
Indeed, how dare people ask for actual citations, instead of accepting vague 'It's in the law(somewhere, find it yourself)', and not understanding that you, AC, are the absolute and utter authority on the law, so if it's obvious to you, it must be obvious to everyone, and anyone who disagrees with you(the all knowing AC), is just being intentionally obtuse!

/s
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Karl (profile), 7 Aug 2014 @ 3:51pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Track Record
Chapter 2

There is no "chapter 2" of the 1976 Act itself, so far as I can determine.

There is, however, a chapter 2 of 17 USC, entitled Copyright Ownership and Transfer. It mentions nothing about a threshold of originality.

You are probably thinking of 17 USC 102, Subject matter of copyright: In general, which states that "Copyright protection subsists, in accordance with this title, in original works of authorship..."

The threshold for originality is mostly formed by case law. See e.g. Feist Publications v. Rural Telephone Service, Bridgeman Art Library v. Corel Corp, or Meshwerks v. Toyota Motor Sales.
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Anonymous Coward, 7 Aug 2014 @ 4:06pm

Re: Re: Re: Re: Re: Track Record
If it in the public domain everyone owns it not no one.

That distinction is meaningless to me. No matter whether everyone owns the copyright or no one owns the copyright, it still means that no single person or entity can control it.
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Gwiz (profile), 7 Aug 2014 @ 4:08pm

Re: Re: Re: Re: Re: Re: Track Record
Anonymous Coward, Aug 7th, 2014 @ 4:06pm is me.

Forgot to log in.
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James Jensen (profile), 7 Aug 2014 @ 4:12pm

Re: Track Record (Later Guys)
Indeed. I run into the same problem when I point out that Obamacare requires yearly virginal sacrifices to Cthulhu. People demand a source and I point them to Public Law 111-148, which is the law itself, but they seem to think that's not good enough or something.
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Karl (profile), 7 Aug 2014 @ 4:20pm

Re: Re: Re: Re: Re: Re: Track Record
That distinction is meaningless to me.

It shouldn't be.

If something is in the public domain, nobody "owns" the copyright, because it doesn't exist.

And it can't be the case that "everyone owns it," because the only thing left to "own" are copies - and those copies are private property.

What everyone holds are the rights that are made exclusive to authors (and their assigns) in 17 USC 106: the right to make copies, the right to public display or performance, etc.

But the reason everyone holds these rights is not because they were "granted" by copyright law. It is because they are private property rights and free speech rights. They hold those rights because they are human rights, and the government should not have the power to remove those rights from its citizenry.

The fact that copyright - a right that is entirely government-created - does in fact take those rights away, should be very meaningful to you.
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James Jensen (profile), 7 Aug 2014 @ 4:22pm

Re: Response to: Gwiz on Aug 7th, 2014 @ 11:32am
…or the plays of Shakespeare, or Moby Dick, or The Brothers Karamozov or Sherlock Holmes, or…
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Gwiz (profile), 7 Aug 2014 @ 4:23pm

Re: Re: Re: Re: Re: RE: The photographer owns the photo.
The copyright owner is unlikely ever care or similarly even find out that someone uses a copy of the photo they took but don't own the copyright to in their portfolio.

Maybe a few years ago, sure. Portfolios of this type are more commonly published on the web these days and usually where anyone and everyone can view them. That does make a difference.

Seems like something fair use would cover if it wasn't huddled in the corner hoping not to get beat up again.

I'm not certain Fair Use would cover this usage myself. Most factors go against it. It's for profit (you're selling your services), non-transformative, use of the entire work, etc..
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Anonymous Coward, 7 Aug 2014 @ 4:24pm

Re: Re: Re: Re: Re: Re: Track Record
Well, technically, if you say everyone has a copyright, then they could conceivably lose that copyright in a bankruptcy proceeding. And if they copied the item after that, they could be subject to a class action lawsuit by everyone who owns a copyright - which is to say, everyone else in the entire country.

Although maybe the suit would have to be dismissed because you wouldn't be able to find an impartial judge or jury - every judge in the country would have a conflict of interest since they'd be among the copyright holders.

We're better off just saying that nobody owns the copyright to the picture.
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Anonymous Coward, 7 Aug 2014 @ 4:29pm

Re:
Apparently I'll have to make my sarcasm a bit broader next time.
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Beech, 7 Aug 2014 @ 4:30pm

Re: Re: The photographer owns the photo
As far as I'm concerned, any "artistic" merit that went into this work was done by the monkey. Copyright, as we are frequently reminded by Mr. Masnick, is intended to further the "arts and useful sciences." As far as owning the camera goes, I have never heard anything about copyright trying to further the ownership of cameras. The physical tools used don't much matter, the artistic output does.

The most logical argument I can muster for the photographer (or camera owner) owning the copyright on this picture is that even though he was entirely uninvolved in it's creation, when he picked HIS camera up he was in physical possession of the only copy of that picture. He easily could have hoarded it in an attic or destroyed it completely. That wouldn't have furthered the arts or useful sciences at all! So instead he released it into the wild for all of us to bicker over. Is that a compelling legal argument? I am sure it is not. But like I said, it's the most logical argument I can make.
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scotts13 (profile), 7 Aug 2014 @ 4:33pm

Re:
Oops, let me sign in this time. That was my comment, and was intended mostly as sarcasm. I'll have to be a bit broader next time. Though I must admit, if someone HAS to own the image, the man is a better candidate than the monkey.
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Karl (profile), 7 Aug 2014 @ 4:35pm

Re: Re: Re: Re: Re: Re: Re: Track Record
I'm just trying to argue against this idea that since the monkey hit the button, the photog doesn't own it.

The only way that Slater (who is not the photographer) would hold the copyright, is if the monkey was "an employee" of his.

Otherwise, he's just like any other owner of the camera used by a photographer. He doesn't hold the copyright.

Animals obviously cannot be employees, so this legally can't be a work for hire. Thus, he doesn't hold the copyright.
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James Jensen (profile), 7 Aug 2014 @ 4:38pm

Re: Re:
If someone HAS to own the image, I'd like to submit my candidacy. I know I didn't take the picture, but apparently neither did he.

I'll of course dedicate it to the public domain upon confirmation of my receipt of copyright. CC0 FTW.
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Beech, 7 Aug 2014 @ 4:40pm

Re: Re: Track Record (Later Guys)
Oh man, how awesome would it be if this AC was actually a Supreme Court Justice and actually WAS an absolute and utter authority on the law? Like, what if this is actually how the Supreme Justices actually made their decisions? And by awesome i mean shitty.
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Anonymous Coward, 7 Aug 2014 @ 4:41pm

Re: Re: Re: Re: Re: Re: Re: Track Record
Not exactly. Copyright is the right to make copies. If no one owns the copyright then no one would have the right to copy it. However if everyone owns the copyright that means everyone has that right which is what the public domain actually is. Ownership of the copies themselves is a completely different matter.
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Anonymouse, 7 Aug 2014 @ 4:43pm

Re: Re: Re: Track Record
you're mixing 2 different laws to come to the wrong conclusion. The work for hire you are referring to, has nothing to do with the equipment ownership. You can be an independent contractor and still create a work for hire situation while using your own equipment, so read those employment contracts carefully. The reason equipment may come into play is in determining your status as an employee OR a independent contractor. That's all.

To determine if you are an employee or independent contractor you have to determine 3 things:

Behavioral: Does the company control or have the right to control what the worker does and how the worker does his or her job?
Financial: Are the business aspects of the worker’s job controlled by the payer? (these include things like how worker is paid, whether expenses are reimbursed, who provides tools/supplies, etc.)
Type of Relationship: Are there written contracts or employee type benefits (i.e. pension plan, insurance, vacation pay, etc.)? Will the relationship continue and is the work performed a key aspect of the business?

http://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Independent-Contractor-S elf-Employed-or-Employee

Equipment ownership falls under the Financial category there.

Section 101 of the Copyright Act (title 17 of the U.S. Code) defines a “work made for hire” in two parts:

a work prepared by an employee within the scope of his or her employment
or

a work specially ordered or commissioned for use [list of 9 different ways here....] if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

http://www.copyright.gov/circs/circ09.pdf

Equipment ownership has literally nothing to do with copyright, and only to do with employment status. At best, in the situation of me asking someone to take my photo with my camera, at my request say on vacation, there is an implied verbal contract they are using the equipment in my service, and as a work for hire even though no compensation is exchanged. In that case, I would bet on the owner of the camera actually losing in court though as the person using the camera composed the shot and took it...they are the button pusher, the composer of the composition in question.
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James Jensen (profile), 7 Aug 2014 @ 4:44pm

Re: Re: Re: Re: Re: Re: Re: Re: Track Record
Incorrect. Copyright is a right to restrict others from making copies. The default, guaranteed in the US by the 1st amendment, is the right to make and disseminate as many copies as you like because copying = speech.
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Anonymous Coward, 7 Aug 2014 @ 4:47pm

Re: Re: Re: Track Record (Later Guys)
Yikes. Imagine if Supreme Court decisions were like this? "It's obvious from a reading of the 1976 copyright law that the plaintiff wins this case. The Court has better things to do than to specify exactly where, but if you insist, it's somewhere in chapter 2."
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John Fenderson (profile), 7 Aug 2014 @ 4:52pm

Re: Re: Re: Re:
"what is in the public domain is actually owned by everyone not no one"

Pure semantics. Logically, something that is owned by everyone is owned by no one.
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Anonymous Coward, 7 Aug 2014 @ 5:00pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Track Record
That law isn't even remotely relevant here because the creation took place in Indonesia, which means that it is up to Indonesian law to determine whether the man is the author. If he isn't, then he can't get US copyright protection on it.
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Anonymous Coward, 7 Aug 2014 @ 5:01pm

Re: Re: Re: Re: Re: Re: Re: Track Record
By the way, are you sure you aren't John Steele? That sort of legal argument looks strangely familiar.
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Anonymous Coward, 7 Aug 2014 @ 5:03pm

Re: Re: Re: Re: Re: Re: Re: Re: Track Record
But according to the law,

the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

If it belongs to everyone, it's the total opposite of exclusive. And... I don't know, saying you "own" the copyright to something in the public domain is sort of like saying you "own" the right to sail a boat on the open sea or you "own" the right to breathe air. I don't think the simple fact that you're legally allowed to do something means you have ownership of anything.

And if something is owned, instead of a natural right, that implies that it can be taken away. Didn't pay your taxes? How about as partial payment we take away your rights to copy public domain works - that's got to be worth something, right? We'll credit you two dollars - after all, the rights are split between ten billion people or so.
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Anonymous Coward, 7 Aug 2014 @ 5:06pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Track Record
Not to mention the common law right to do anything not prohibited.
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Anonymous Coward, 7 Aug 2014 @ 5:14pm

Re: Re: Re: Re: Re: RE: The photographer owns the photo.
So what you are saying is that the argument that ownership of the equipment entitles the photographer to the copyright is an argument that the monkey is his employee. Ok Mr. Steele. One little problem with that silly argument. The monkey is Indonesian, he is British. How exactly is the US definition of work for hire and case law determining what whether the monkey is an employee or not applicable?
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Anonymous Coward, 7 Aug 2014 @ 5:17pm

Re: To take this on a bit of a tangent...
"Life plus XX years" copyright laws are just another way of enriching future generations for doing no work, in exactly the same way that gets railed against when we're talking about money!

Indeed the Berne Convention explicitly says so - it requires copyright to provide an income for the authors' grandchildren. For that we can thank Victor Hugo, who was the public face of the campaign to get that rule, and of course the usual corruption, idiocy, and treason on the part of the world's politicians.
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Anonymous Coward, 7 Aug 2014 @ 5:18pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Track Record
Ok explain then how something can be in the public domain in one country but not another.
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Gwiz (profile), 7 Aug 2014 @ 5:22pm

Re: Re: Re: Re: Re: Re: Re: Track Record
The fact that copyright - a right that is entirely government-created - does in fact take those rights away, should be very meaningful to you.

Fair enough and you're right, of course. It most certialy does matter in the overall debate whether copyright should exist or not.

Still, in purely practical terms with our copyright system as it currently exists, the distinction really is meaningless - permission to use however you choose is not required.
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Anonymous Coward, 7 Aug 2014 @ 5:34pm

Re: Re: Re: Re: Re: Re: RE: The photographer owns the photo.
Wikimedia is a US organization. They would rely on US law as to whether something was copyrighted or not, regardless of where the work was created. It's entirely possible for the same work to be in the public domain in one country but under copyright in another.
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Gwiz (profile), 7 Aug 2014 @ 5:35pm

Re: Re:
That was my comment, and was intended mostly as sarcasm.

My apologies then.

Out of curiosity, which parts are the mostly sarcasm parts?
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Anonymous Coward, 7 Aug 2014 @ 5:37pm

Re: Re: Re: Re: Re: Re: Re: RE: The photographer owns the photo.
Is copyrighted a word?
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James Jensen (profile), 7 Aug 2014 @ 5:52pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Track Record
Not much to explain, really: different countries have different laws.
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JMT (profile), 7 Aug 2014 @ 5:59pm

Re: Re: Re: Re: Re: Track Record
"For sources it's the Copyright Act of 1976, but I'm getting mad hate for pointing that out from everyone else here."

Now you're just being a trollish idiot. Either quote the actual relevant text of the law, or admit you don't know what you're talking about.
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JMT (profile), 7 Aug 2014 @ 6:03pm

Re: Premise is faulty...
You are completely wrong on all points. The public domain does not mean "owned by everyone", it simply means it's not restricted by anyone. And there is no copyright on martial in the public domain, it is be definition free of copyright.
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JMT (profile), 7 Aug 2014 @ 6:29pm

Re: Track Record (Later Guys)
"Well that was fun and you all confirmed my suspicions that the vast majority of you don't know what you're talking about."

Well you certainly confirmed that you're a bit of a blowhard who makes unsubstantiated claims and then deflects when called out on it.

"My favorite part was when everyone started asking for sources and then got all mad when I provided one that didn't fit their personal views."

My favorite part was when you were asked repeatedly to point out exactly where in the Copyright Act it says what you claimed, but you were completely unable to do so. It's pretty hard to read that any way other than you knowing you're wrong.

"Here's a hint, if you're going to debate Copyright Law, the source is the current copyright law - not some random blogger."

And we should instead take the word of a random anonymous commenter who provides absolutely zero credible support for their claims? I must have missed the bit where you demonstrated how or why we should trust you more than this particular blogger.
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Beech, 7 Aug 2014 @ 6:41pm

Re: Re: Re: Re: Track Record (Later Guys)
"Clearly all the experts are dumb and this incredibly complicated issue is simple. Court adjourned!"
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Anonymous Coward, 7 Aug 2014 @ 6:50pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Track Record
In countries where the work is in the public domain those people have, own, or otherwise possess the right to copy the work. In other countries, only certain people have, own or possess that right while others do not.
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Anonymous Coward, 7 Aug 2014 @ 6:59pm

Re: Re: Re: Re: Re: Re: Re: RE: The photographer owns the photo.
Not if the lawsuit was filed somewhere else. I can see an argument that because the "work" was performed in Indonesia, Indonesian law would apply as far as what constitutes employment. Perhaps since the "employer" is British, UK law would apply. Regardless since in an infringement claim, Wikimedia would be the defendant so choice of venue would not be their option.
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Anonymous Coward, 7 Aug 2014 @ 7:05pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Track Record
Skip a bit brother .
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James Jensen (profile), 7 Aug 2014 @ 7:57pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Track Record
Well, yeah. Different countries, different laws. Some countries allow people to restrict others, others don't, or allow it on different terms. I'm not sure what's confusing about this?
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AC, 7 Aug 2014 @ 9:10pm

Re: Track Record (Later Guys)
Troll points: +3 for air of authority; -1 for believing what you're saying (self-trolling? come on); 3x combo for persistence!
Overall: 6/10. Believing what you're saying really hurt you there.
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Anonymous Coward, 7 Aug 2014 @ 11:41pm

Re: Re: Re: Re: Re: Re: Re: Track Record
The monkey did far more than hit the button - it chose the subject, the angle, the lighting, the precise moment to actually snap the picture, etc.

The only thing the equipment owner did was provide the camera, and possibly processed the raw image after retrieving it from the camera (this wasn't discussed, so it's hard to know how much post-processing of the image has occurred).

I'm assuming that rented or borrowed (or even stolen equipment) does not automatically assign copyright back to the original owner of the equipment - has that ever been tested in court that you can prove?
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JMT (profile), 8 Aug 2014 @ 12:02am

Re: Re: Premise is faulty...
Oops, *by definition*
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Greevar (profile), 8 Aug 2014 @ 12:15am

Re: Re: Re: Re: Re:
It's not semantic. "No one owns it" is exclusive. It excludes everyone from owning it. "Everyone owns it" is inclusive. It includes everyone to own it.
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Anonymous Coward, 8 Aug 2014 @ 2:49am

Re: Re: Re: Perhaps we should allow monkeys to hold copyrights...
An IP extremist vs a monkey. What's the difference.

Oh wait. I just realized that I insulted the poor starving money.
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Anonymous Coward, 8 Aug 2014 @ 5:26am

Re: Re: Re: Re: Re: Re:
And the practical difference between the two is what?

If there is no functional difference, then it is pure semantics.
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art guerrilla (profile), 8 Aug 2014 @ 5:33am

Re: Re: Re: Track Record
okay, here's the ONE point you can takeaway from my burblings: the SCOTUS is corrupt, morally, legally, and monetarily-wise as well; their 'decisions' are NOT a distillation of law and reason dedicated to upholding the constitution and promoting the greatest good for the greatest number, but pre-determined outcomes that benefit Empire and its puppetmasters...
discuss...
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That One Guy (profile), 8 Aug 2014 @ 5:43am

Re: Re: Re: Re: Perhaps we should allow monkeys to hold copyrights...
An IP extremist vs a monkey. What's the difference.

Spending a prolonged period with the monkey is less likely to leave you with the feeling that you've been doused in slime and just wasted your time talking to someone incapable of realizing that there are other people out there, and that they matter too.

The monkey is also much less likely to fling crap at people that anger and annoy them.
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Greevar (profile), 8 Aug 2014 @ 7:03am

Re: Re: Re: Re: Re: Re: Re:
"No one owns it" is exclusive. That means that everyone is excluded from owning it. That doesn't imply that everyone can have use of it. Example: Nobody owns dark matter.

In contrast, "everyone owns it" is universally inclusive and everyone can use of it. Example: The park belongs to everyone. Content is an even stronger example of "everyone owns it", because not only is the ownership universally exclusive, it is universally accessible. Everyone possesses the whole without diminishing others from possessing it.
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Niall (profile), 8 Aug 2014 @ 7:48am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Track Record
Ok explain then how carrying military-grade weaponry can be legal in one country but not another.

FTFY
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Gwiz (profile), 8 Aug 2014 @ 8:02am

Re: Track Record (Later Guys)
Here's a hint, if you're going to debate Copyright Law, the source is the current copyright law - not some random blogger.

Here's a better hint: If you are going to debate copyright law, the source is current copyright law AND the caselaw surrounding it. How the courts have interpreted the statutes is just as important as the original laws.

Just pointing to 17 U.S.C. clarifies nothing. You need to be specific, including any relative caselaw that supports your argument. You haven't done so.

Also, if you actually read the article that was linked you'd know it was "some random blogger" quoting the words of an actual copyright attorney who works with photographers.
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Anonymous Coward, 8 Aug 2014 @ 9:38am

Re: Re: Re: Re: Re: Re: Re: Track Record
'Ownership' is provided by government. Otherwise all you have is who currently 'possesses' it. The public domain is a lack of government. You don't own something the government is not required to provide you with.
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Anonymous Coward, 8 Aug 2014 @ 9:51am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Track Record
IP is the privilege to exclude others. Those living in countries where something is in the public domain don't have the privilege of excluding others from using the work neither in their own countries nor in the countries that the works are not in the public domain. It is not them that are excluding citizens in other countries from using the works just like it is not them that are able to allow them to use those works in those other countries where the works are still not in the public domain.
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Anonymous Coward, 8 Aug 2014 @ 10:17am

Re: Re: Re: Re: Re: Re: Re: Track Record
"I'm just trying to argue against this idea that since the monkey hit the button, the photog doesn't own it."

and I'm just trying to argue that because we exist flying unicorns must also exist as well.

I suppose you can try to argue anything you want but shouldn't your efforts be directed at trying to do research and argue a position based on its merit instead of trying to argue something for the sake of 'just trying' to argue it. Or is it that you're just trying to argue something that supports your personal agenda and trying to find the best argument that you can come up with in favor of it. You want to argue against an idea regardless of its merit just because you don't like it.

So you tried to argue something. Your argument failed. What's the point of simply telling us what you were trying to argue? Why should we care? Does telling us what you were trying to argue support your argument any? I can try to argue for magic flying unicorns too.
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John Fenderson (profile), 8 Aug 2014 @ 12:37pm

Re: Re: Re: Re: Re: Re: Re: Re: Track Record
Ownership is a societal concept distinct from government. Government does not "provide" ownership, although laws very often enforce the concept.

In other words, if government did not exist then you could still "own" stuff. You'd just be on your own in terms of enforcing your ownership.
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Andrew D. Todd, 8 Aug 2014 @ 4:36pm

The Great Impostor.
As I pointed out a couple of years ago, if you have had the advantage of knowing real wildlife observers, David Slater comes across as a bit of a joke. Many years ago, when I was taking a freshman anthropology course from a man named Gustav Carlson, there was an extra-credit assignment to go to the Cincinnati Zoo, to the monkey house, sit down in front of a cage, and observe in detail what the monkeys in the cage did for half an hour, and write up a report. I don't think that David Slater has graduated from that level.

https://www.techdirt.com/articles/20110714/16440915097/photographer-david-slater-claims-that-b ecause-he-thought-monkeys-might-take-pictures-copyright-is-his.shtml#c1496

David Slater's real legal principle seems to be a kind of diluted form of Res Nullius.

http://en.wikipedia.org/wiki/Res_nullius

Of course, Res Nullius in its grand ancestral form meant that any Spanish Conquistador could rob, kidnap, torture, rape, murder, and enslave any Arawak Indian. This of course resulted in the substantial extermination of the Arawak Indians within fifty years or so, the first precedent for the Holocaust, and the resort to the Atlantic Slave Trade, with its premise of the Res Nullius right to rob, kidnap, torture, rape, murder, and enslave any African.
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BernardoVerda (profile), 8 Aug 2014 @ 5:32pm

Re: Re: Re: Re: Re: Re:
Who owns the rain? Who owns the Sun?
Who owns the Theorem of Pythagoras?
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BernardoVerda (profile), 8 Aug 2014 @ 5:44pm

Re: Re: Re: The photographer owns the photo
Has this guy claimed he deliberately set the situation that resulted in the ape taking the photo?

All I recall seeing is his complaints about how valuable the camera was, and how much the trip cost. Considering his comments on the high cost of his equipment, I rather doubt it.
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That One Guy (profile), 8 Aug 2014 @ 7:44pm

Re: Re: Re: Re: The photographer owns the photo
On the contrary, from what I've read, he set the camera down as he went to answer a call of nature, some monkeys checked it out, and ended up taking a couple of hundred pictures with the thing, once they figured out how to work it.

The entire reason the picture got so much attention is that he claimed the monkey took it him/herself, if the human had taken the picture it would have just been another picture of a monkey.

He had nothing to do with the situation other than showing atrocious decision making skills by leaving an expensive, and very breakable, piece of equipment next to a couple of monkeys.
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Greevar (profile), 9 Aug 2014 @ 5:19pm

Re: Re: Re: Track Record
A majority doesn't make it right nor true. That's the problem with government and the courts. They rely on a majority opinion, even if it doesn't fit the data. What the majority says, goes. That's not a rational basis for solving problems.

There's a saying, "What is popular is not always right, and what is right is not always popular."
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BernardoVerda (profile), 9 Aug 2014 @ 6:51pm

Re: Re: Re: Re: Re: The photographer owns the photo
In that case, he doesn't have a leg to stand on.

Now, if he had deliberately set up the situation to encourage the monkeys to examine, handle or play with the camera, then he'd have a case, and I'd probably be inclined to give him the credit, and the copyright.

But I rather doubt whether "I made a stupid, careless mistake, quite by accident -- but by pure dumb luck my equipment survived, and by even purer dumb luck a usable photo came out of it," really qualifies.
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Anonymous Coward, 16 Aug 2014 @ 4:31am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Track Record
The only part of chapter 2 of 17 USC that would have any meaning is 201(a), and that doesn't support your argument at all. So, again, what, specifically, in 17 USC supports your assertions? Keep in mind that you can find the entire document online, and nothing in Chapter 2 seems to collaborate what you assert.
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Anonymous Coward, 16 Aug 2014 @ 4:39am

Re: Re: Re: Re: Re: Re: Re: Track Record
Pointing at the law instead of the actually wording that supports your supposition is not helpful, as you well know. If you can't point to the precise location, then you're just blowing smoke.
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Anonymous Coward, 16 Aug 2014 @ 5:17am

Re: Re: Re: RE: The photographer owns the photo.
You keep saying that, but you're talking about caselaw that was about work for hire. HIRE. The monkey wasn't hired. The lack of contract doesn't matter, as the monkey couldn't be an employee, anyways, so this is all a moot point.
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Anonymous Coward, 16 Aug 2014 @ 5:20am

Re: Re: Re: Re: Re: RE: The photographer owns the photo.
For a case filed in Britain this wouldn't be a consideration, as British copyright does not have 'fair use.'
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