Can We Subpoena The Monkey? Why The Monkey Self-Portraits Are Likely In The Public Domain

from the do-monkeys-believe-in-the-public-domain dept

So our post concerning the takedown request from Caters News Agency over the monkey self-portraits has stirred up quite a lot of interest and discussion around the globe. I wanted to revisit the issue a little more focused on the legal side, and why it seems quite likely that these images are very much in the public domain (which would also suggest that an actual takedown notice (rather than a simple request, as happened here) would represent copyfraud.

First up, I've seen many people insisting that the camera owner gets the copyright on any photo taken with their camera. If you read the comments on various other news stories that have covered this, people say this so confidently. They're almost certainly wrong. There may be some exceptional cases where that's true, but for the most part it's not true. The confusion here is between ownership of the photo itself and the copyright on the photo. This is an issue that confuses many people who don't deal much with copyright law, but the photo and the copyright on the photo are two separate things.

Under US law (we'll deal with elsewhere soon), you have to have made the creative contributions (the copyrightable aspects) to the image to have it qualify for any copyright protection (and then, it's only the creative aspects that get the copyright). Thus, you could argue that if the photographer had set up the camera, framed the shot, and simply let the monkey click the shutter, perhaps there is some copyright there (though, even then it would likely be limited to some of the framing, and not much else). But David Slater has already admitted that the monkeys found a camera he had left out by accident and that he did not have anything to do with setting up the shot. He's stated that the monkeys were playing with the shiny objects and when one pushed the shutter, the noise interested them and they kept it up. It would be difficult to argue he made any sort of creative contribution here to warrant copyright.

Can the monkeys get the copyright? No. As Justin Levine kindly pointed out, according to the rules published by the US Copyright Office:

503.03 Works not capable of supporting a copyright claim.

Claims to copyright in the following works cannot be registered in the Copyright Office:

503.03(a) Works-not originated by a human author.

In order to be entitled to copyright registration, a work must be the product of human authorship. Works produced by mechanical processes or random selection without any contribution by a human author are not registrable. Thus, a linoleum floor covering featuring a multicolored pebble design which was produced by a mechanical process in unrepeatable, random patterns, is not registrable. Similarly, a work owing its form to the forces of nature and lacking human authorship is not registrable; thus, for example, a piece of driftwood even if polished and mounted is not registrable

That seems pretty cut and dried. The works are not subject to copyright at all. That would make them public domain.

But that's all under US law. Could there be international claims? Aurelia J. Schultz has the best review of the relevant international law that I've seen, and it, too, concludes that the photos are almost certainly public domain. There are two countries where the law may matter: Indonesia and the UK. Schultz first looks at Indonesian law:

Under Indonesian copyright law an author is “a person or some persons.” Miss Monkey is ruled out right there I’m afraid.

Sorry, Monkey. UK law?

Since it’s a British company claiming copyright, any suit is likely to be brought in the UK.  Indonesia is a member of Berne and TRIPs, so the photos should be treated the same as UK works under UK copyright law.  Unfortunately for the monkey, The UK copyright law also defines author as “the person.”  Sorry monkey, it’s not you.

Monkey see, monkey do, but monkey don't get no copyrights. Okay, but does David Slater and/or Caters News have any copyright interest in the photos under international law? Again, the answer is almost certainly no. Under Indonesian law, if anyone can claim the right to the image, it might be the Indonesian government:

There is a clause in Article 7 of the Indonesian copyright law that specifies if a work is designed by one person and worked out by another, then the one who designed the work gets the copyright. If the photographer had set up the shot and the monkey had just taken the photo, the photographer would likely have the copyright. But the photographer didn’t design anything here. He just left his camera. The monkey did all the designing in the photos, so this article shouldn’t apply.

Perhaps more useful here is Article 9, “If a legal entity announces that a work has originated from it without mentioning a person as the author, then the legal entity shall be deemed to be the author, unless proven otherwise.” The monkey took the photos in an Indonesian national park. The Indonesian government presumably owns that park and is a legal entity. It would seem that if the Indonesian government claimed it was the copyright owner, then it would be. Except for that “unless proven otherwise bit.” But this leads us to another question, does the park own the monkey?

If not having an author as defined under the copyright law is the same as having an unknown author, then Indonesia owns the copyright under Article 10A of the Indonesian copyright law.

Okay, but Caters said they represented Slater, not the Indonesian government. What about under UK law? There, too, it appears that the image is almost certainly public domain:

Under Section 153, the work only qualifies for copyright protection if it meets requirements in several different areas including the area of author.  Section 154 outlines the requirements the author must meet in order for the work to receive copyright protection. 

• Option one, a British citizen. Pretty sure the Indonesian monkey is not a British citizen.
• Option two, an individual domiciled or resident in the UK. Monkey lives in Indonesia.
• Option three, an individual domiciled or resident in another country to which the relevant provisions of this Part extend. This seems to include any countries to which the UK must extend national treatment with respect to copyright. Since Indonesia is a member of Berne and TRIPS, Indonesia would be one of these countries. It might seem like we need to know if the monkey is an individual, or if it can be domiciled or resident.  But, that doesn’t matter because the first part of Section 154 says “if the author was at the material time a qualifying person.” (emphasis added)

So it appears under UK law, the photos are in the public domain.

So, it's looking like the image is in the public domain in both the UK and the US.

Of course, given Caters initial response to this whole thing: "Michael, regardless of the issue of who does and doesn't own the copyright - it is 100% clear that the copyright owner is not yourself," it suggests that Caters doesn't wish to recognize a public domain or the value that it provides. I find this to be yet another depressing statement on the state of copyright law today, where people can't even fathom the idea that such a photo might actually belong in the public domain, where it can be used legitimately to enrich the lives of everyone.

Filed Under: copyright, david slater, indonesia, monkeys, public domain, uk, us
Companies: caters news agency

Monkeys Don't Do Fair Use; News Agency Tells Techdirt To Remove Photos

from the monkey-see,-monkey-do,-monkey-sue? dept

Remember our story last week, discussing the copyright issues of monkeys taking photographs of themselves using a photographer's camera that he had left alone? The whole post was about whether or not anyone had a legitimate copyright claim on the photos, noting that the photographer, David Slater, almost certainly did not have a claim, seeing as he did not take the photos, and even admits that the images were an accident from monkeys who found the camera (i.e., he has stated publicly that he did not "set up" the shot and let the monkeys take it). And yet, Caters News Agency has a copyright notice on two of the images, claiming to hold the rights to them. We doubted that the monkeys -- who might have the best "claim" to copyright on these photos, if there is one, had licensed the images.

Either way, we were a bit surprised to receive a notice on Monday from Caters News, telling us they represented David Slater with respect to the syndication of those photos, and asking us to take down the photos. The notice was not a DMCA takedown notice. It doesn't even mention copyright, though that seems like the only basis upon which they would make such a takedown request. And, to be clear, it was not in the least bit threatening. There is no legal language and no threat at all in the note. Here it is in its entirety (minus the name and contact info of the person who sent it):

Hello,

I have noticed you have used David Slater's images on your website. However we are representing David Slater and syndicating these images on his behalf.

https://www.techdirt.com/articles/20110706/00200314983/monkey-business-can-monkey-license-its-copyrights-to-news-agency.shtml

These images are being used without David's or our permission, therefore can I ask you remove these images from your site immediately.

Please email me to inform me when this done.

Thanks

Given that the very nature of our post was to point out that it's unlikely that Caters has a legitimate copyright claim on these photos, it struck me as a bit odd that they would not even address that at all. In fact, I almost wondered if this was a prank from someone. So I contacted Caters to confirm that it was legit and received confirmation saying that it was, indeed, genuine. After consulting no fewer than four lawyers (I'm nothing if not thorough) on this matter, I decided that the best course of action was just to ask for a clarification, since they did not make clear the actual basis for the request, and point out that it's not at all clear Caters has any legal claim whatsoever. At the same time, assuming they could come back with some legal argument for why the copyright was legit, we decided to make it clear that we believe, strongly, that the use of the images was protected fair use, if they actually are covered by copyright. Since the initial email was not threatening or legalistic, I decided that it was best to reply in kind, without having a lawyer respond on our behalf.

In response to your email concerning the posting of images that were taken by some monkeys using David Slater's camera, I was hoping you could elaborate on your request for us to remove the images. Your request never uses the word copyright, but in the absence of a copyright claim it is not clear to me on what basis you might be asking that the photos be removed. If you ARE asserting a copyright claim, what is the basis for your claim that Slater holds the copyright on any of the images (and thus, had the right to license them to you)? In the original article, Slater himself apparently admits that the images were an accident from monkeys who happened upon the camera, so I'm trying to understand the basis for claiming that the copyright on the images are Slater's to license?

Separately, we believe strongly that the use of the images in our post was quintessential fair use under US copyright law. The post itself was not about the photos, so much as the copyright issues raised by the photos. As such, displaying the photos as part of that discussion was necessary to make the point. We believe the very nature of the discussion around the copyright question makes this a transformative use of the photos, Furthermore, Section 107 of the Copyright Act lists out "news reporting" as one of the key purposes for which fair use is designed to cover.

As this very discussion relates to the point of our original post, we also intend to make this discussion public, as it would likely further the commentary around the copyright on these images.

Thank you,
Michael Masnick

Caters was quick to reply, and it appears they have a rather different view on these things:

Michael, regardless of the issue of who does and doesn't own the copyright - it is 100% clear that the copyright owner is not yourself.

You have blatantly 'lifted' these photographs from somewhere - I presume the Daily Mail online. On the presumption that you do not like to encourage copyright theft (regardless of who owns it) then please remove the photographs.

If I'm reading this correctly -- and I believe that I am -- Caters News Agency is claiming that anyone, copyright holder or not, can issue a takedown on a photo, if they can claim that the person using the image is not the copyright holder either -- regardless of whether "fair use" applies. That's... an interesting interpretation of the law. It's also not a valid interpretation of the law. In fact, in some places, sending a takedown notice, if you are not the copyright holder, is what's actually against the law. It's absolutely true that we are not the copyright holder, but as I made clear in my email, that does not matter, as we believe that our use qualifies as fair use. The whole point of fair use is, in fact, to allow those who are not the holders of the copyright to make use of the work in some cases, so it seems odd that Caters would imply no such thing exists.

Also, the second paragraph seems completely out of left field. If the images are either public domain or fair use, then there is no "theft" or "lifting" at all. And, no, I'm not "encouraging copyright theft" at all. You could say I might be encouraging fair use, but that seems like a good thing, doesn't it? Separately, "copyright theft," implies someone falsely taking possession of the copyright itself, not making use of a work. I don't see how that applies to us at all. We're not the ones claiming a copyright on an image we have no copyright interest in. Finally, whether or not we got the images from the Daily Mail seems entirely superfluous. At no point has Caters suggested that the Daily Mail holds the copyright on these images, so bringing up the Daily Mail seems to suggest a bizarre situation where Caters appears to believe that our fair use efforts violate some totally unstated right that the Daily Mail holds on these images.

Either way, we stand by our original analysis. We do not believe Caters News Agency has a legitimate copyright interest in the photo, and the company is in no position to issue a takedown of the images. Furthermore, even if it does turn out, through some convoluted process, that Caters does have a legitimate copyright interest in the photo, we believe that our use falls squarely into the classical confines of fair use under US copyright law. Thus, we have no plans to remove the photos or make any changes, barring Caters providing us with a sound basis for doing so.

More importantly, this highlights another case of someone completely misunderstanding the purpose and intent of copyright law, believing that it is universal and that it gives total control to the copyright holder. Caters does not even seem willing to consider that this image might not even have a copyright given its provenance. In fact, under Cater's own definition, it seems just as reasonable for us to ask that it take down the image, given that we do not believe that it has a valid copyright interest in the image either. Not everything gets copyright, and when something is covered by copyright, it does not give the rightsholder full control over every use. It's unfortunate that a company that has built a business around copyright appears not to understand these basic facts.

Filed Under: copyright, david slater, fair use, monkeys
Companies: caters news agency