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The fact that the Copyright Office has refused to register the image, for the same reasons and logic Wiki uses, is good ammunition for a case.
Me thinks photographers get too much copyright for what is often 1/60s work.
That so-called Macaca nigra monkey selfie isn’t in the public domain, no matter what Wikipedia wants you to think. In fact, the encyclopedia's stance on the matter could backfire and hit it in the pocket. A photo sold by British snapper David Slater since 2011 hit the headlines again this month when Wikipedia refused to …
With increasingly automatic cameras it might be difficult to justify copyright on grounds of creative input, but you can always argue intention.
In this case the photographer did have the idea to give the simian the camera to get it to take a selfie, switched the camera on and presumably had to direct the simian's finger to the shutter release to get it to take a picture of it's face and not its genitals...
So I think he has a claim.
As for the last remark. Pooh.
The test should be :
If I was given the camera by a professional photographer, and I took my own selfie, would *I* own the rights to it, even though this was the intent of the photographer ?
In my opinion I would, however I am a natural person. The photographer may argue that if not taken by a natural person, he at least has a claim to "derivative" works. All that would be required is a little cropping or resizing and the derivative work is protected ? The simian in question is unlikely to protest, so squatter's rights for the work could be claimed as there is no true owner ?
Another thing to consider is any payment of fees by a professional photographer and the expectation that works created could be used for commercial purposes in return.
In the first instance, even though it supports provenance, it was a mistake to admit that this was a selfie, and *not taken* by the photographer, even vicariously.
If I take a picture of you with your camera after you asked me to take a picture of it I still own the copyright to the said picture. You still own the copyright of a picture you took of me illegally.
The monkey owns the copyright to the picture not the camera owner, or perhaps the owner of the monkey?
>>"If I take a picture of you with your camera after you asked me"
As others have said earlier, in this case you have intent to take a picture. An animal that merely triggers the shutter does not.
On a separate note, Wikipedia's page on this dispute is tremendously smug about the whole thing and explaining in a faux-objective way why they're in the right. Extremely obnoxious.
> If I take a picture of you with your camera after you asked me to take a picture of it I still own the copyright to the said picture.
No you don't. You would be acting as an agent under direction by the person asking you. If you don't like the idea of being a mere agent then refuse to take the picture. If you want to own copyright to a photo then use your own camera.
> You still own the copyright of a picture you took of me illegally.
If you are in a public place then taking a photo of you is not illegal.
The monkey owns the copyright to the picture not the camera owner, or perhaps the owner of the monkey?
To my mind, the number one question should always be: "whose camera was it?" If I own the camera, then I own what's inside it, unless I was specifically hired to take those photo's.
This quite neatly covers the "wildlife camera trap" issue,
it covers the "photographer's assistant" issue,
it covers the "random stranger taking a photo - at my request - of me in front of a tourist landmark"
That may not be how the law does the test, but fundamentally, Wiki is wrong to steal the work of a professional, and doubly wrong to make a big deal over it.
The selfie was rather an accident than a guided snap, one of a whole series the ape took of itself. As I recall the circumstances the camera owner (Slater) did not exercise sufficient control to claim copyright. Of course, Orlowski and co. are free to disagree. We shall see what the court says.
>>"Me thinks photographers get too much copyright for what is often 1/60s work."
I'll re-post my response from last time someone made this idiotic comment on here: I was once paid £200 for an hours work. That's quite a good rate for an hour. But then of course I was paid that because I had years of familiarity with the software, extensive programming experience, understanding of what they wanted to achieve. All things that actually enabled me to do that hours work. But no, by this reasoning it doesn't matter - only the length of time it took me on that specific instance.
1/60th of a second? There's no way photographers should be paid anything at all! Even paying them £1 for that photo would equate to over £200,000 per hour rate! Preposterous - they're having a laugh.
If they want to get paid more, they should invent a slower shutter, work-shy little shysters!
Oh and fallacious though your reasoning is anyway, your facts are also wrong. That's not 1/60th of a seconds work. As well as setting up the camera and settings, once the photo is taken, there's the post-work done on the photographs. Even the selection process of which photo to use. I guarantee you that the photo we have seen is the product of a fair bit of skilled work post taking. Things that also contribute to its copyrightable nature.
The problem with your counter argument isn't that it's no good. It's that it's TOO good.
If the man with the monkeys had randomly tripped over a root, spun around and accidentally captured an airplane on fire passing overhead, he would still have a copyright claim. No intent, perhaps no effort if it happened in his backyard. .: Creative intent and hours of prep are interesting, but lack of them doesn't have anything to due with the validity of a copyright claim.
So the rules have been set based on things that are easier to measure. Which ape pressed the button? Them's the rules. If photographers want to lobby Congress or Parliament or Berne to change the rules, so that Copyrights depend on the things you mention, go ahead. Fill out this form IN ADVANCE with your creative intent. Fill out this expense and travel report to document your effort.
The paradoxes that arise are a natural result of drawing a thin line in a continuum. No avoiding them, just choose whatever ones you want.
>>"If the man with the monkeys had randomly tripped over a root, spun around and accidentally captured an airplane on fire passing overhead, he would still have a copyright claim."
In this case, the photographer gets the copyright because there is no other responsible party and the effort to produce it such as it was, is still his. In the case of the monkey photo, there is still no other responsible party and the effort such as it was, is still his. He bought the equipment, he set it up, he spent the time getting the monkeys used to his presence, he travelled around the world to photograph them. There's no contradiction between the aeroplane and monkey cases. The monkey has no intent or creative contribution anymore than if he had set up a system where the wind in the trees moved a branch to take the photograph. Plane or monkey, the creative effort is the photographers and there is no other responsible party.
So the rules have been set based on things that are easier to measure. Which ape pressed the button? Them's the rules.
Cite me this mystical rule.
If you had bothered to read the article you are commenting on you would have seen references to established case law showing that your interpretation is wrong.
Once again another Reg commentard who is completely unable to distinguish between what he wants to be the case and what really is the case.
> you're paying for but the knowledge behind it.
Except that the photographer has already admitted the selfie was an accident.
If I give my camera to someone who takes a picture of themselves with it, can I claim copyright? If I'm a photo pro and set up my friend's camera for his wedding, can I then license the photos taken with that camera?
Or are we just saying that copyright goes to the nearest human controller? In that case, what if a bystander yells, "yoohoo! over here!" Who is the controller then?
Its a difficult case, and hard cases make bad law.
The "British snapper" David Slater would normally have an unquestioned title to the copyright. However, as the stories I've read are told; the monkey retained possession of the camera for some time and took MANY pictures. Tilted, fuzzy, awkward, and otherwise, of itself and the surrounding environment. I'm unaware of any other pictures release from that series other than the "selfie". If the progression of images might show that the monkey actually learned, (even in a limited fashion), the proper distance an fashion to gather a proper "selfie" and/or other images; then SHE - NOT the "British snapper" David Slater is the true photographer and deserving of the actual copyright. A timeline of the camera's images delineating both "British snapper" David Slater's pictures and the monkey's that day might provide further enlightenment.
Perhaps the monkey is tired of recreating Shakespearean plays and the "British snapper" David Slater has appropriated other images of hers for his own use - maybe even with her tacit permission as a fellow nature photographer. ;-)
The monkey's "selfie" was extraordinarily well done and makes Jimmy Wales' version look like it was taken by an ugly stupid naked ape trying to copy a master artificer of imagery!
"The US Copyright Office makes it clear that he does not, at least in the US. "
Unless, of course, as is the opion expressed in the article, that the photo may well be copyright under UK law, in which according the Berne Convention, all countries who are signatories, including the US, must respect that copyright.
Since it's currently in dispute and a competent authority, ie a court of law, has not pronounced yet, using the opinion of the US Copyright Office, who are not competent to make that decision, as a ruling is risking a lot in terms of potential damages down the line.
You might consider RTFA for Shaun Nichols' fine article, Mr. Orlowski, or read the opinion of the US copyright office (which is where this is likely to be fought).
The US Copyright Office is quite clear that he does not. Your wishes have no bearing on the matter.
....opinion of the US copyright office (which is where this is likely to be fought).....
Not necessarily, he could have the copyright claim validated in the UK, which seems to lean in his favour, a ruling which the US would then be forced to uphold via the agreement.
> The US Copyright Office is quite clear that he does not. Your wishes have no bearing on the matter.
Your assertion is incorrect. The US Copyright Office refused an application to register the copyright because it is in dispute and registering it would preempt any court case. They do not say that Slater does not own copyright, only that they reject his application.
Actually, you are quite wrong. The US Copyright Office hasn't refused any application. All they've done is make their position known and clear. If this ends up in court, the court could disagree with the Copyright Office and mandate a change. If people disagree on how Copyrights are being handled in the United States, lawmakers can update, clarify, and modify the law... which is how the system is supposed to function. But as it stands now, this photograph cannot be copyrighted.
"The U.S. Copyright Office will register an original work of authorship, provided that the work was created by a human being.
The Office will not register works produced by nature, animals, or plants.
A photograph taken by a monkey."
The trick here is that it's a photo TRAP, meaning the photo was taken basically on a direction of the photographer (take the picture when an animal crosses this point). This makes it a human-directed picture and thus copyrightable.
In the monkey picture, as far as we know, the monkey took spontaneous photos without any human direction. Sort of like a dog knocking over a paint pot and the contents splatting on a canvas.
Except the photographer would have chosen the settings to suit the conditions. Presumably something like multi shot, matrix metering, certain aperture and high enough ISO to get non-blurred shots. He likely also chose the focal length - whether that be a zoom setting or a suitable prime lens. In that case he has more than contributed enough to claim copyright over the shot unless of course you are arguing that the simian did the above?
How does the length of time involved in a given action determine the value of the end result of the action? If something takes a long time that could just as easily be caused by stupid as it could be by Goldbergian tactics. If we apply your logic to other things then one could argue that Human babies resulting from premature ejaculation don't count as people and can therefore be owned like any other property but a baby resulting from 500ml of bourbon and hours of a couple going at it hard enough to lose weight is 'more Human' and can't qualify as property.
If we took the line of JeffyPoooh (the first poster in this thread who suggested the work creditable in taking a photograph should only be considered the 1/60 of a second the shutter was open), the only relevant aspect here would be arguably the length of time the guy took to, er.... shoot his load.
Conversely, one may argue that the effort counted should extend the time beyond the act itself to include everything involved in setting it up (e.g. buying nice-looking clothes, time taken to visit a nightclub, identify the laydee you wish to, er... shag (sorry, my euphemism-generator got bored and went home), buy her drinks, convince her that you're not the sleazy, desparate git you appear to be and you really are Simon Cowell's brother and can get her on the final of Britain's Got Talent if she goes to bed with you, etc. etc.
Some may argue that in this case, the end result (i.e. babby being formed) was not intentional, but rather a result of your drunkenness convincing you that foregoing condom usage was a sensible idea, etc. etc.
At any rate, if you're in (e.g.) a healthy married relationship, this will probably take less time to set up, so by the above logic, the resultant baby will be *less valuable*.
Yeah, I'm posting this anonymously. That's a load of f****d up drivel when you look at it. :-(
An excellent argument, and funny. Here's another one...
Monkey man lost his camera. He dropped it along the trail somewhere. Next day he finds it full of monkey selfies. Copyright?
FUNDAMENTALLY: When humans draw thin lines in a continuum, you must expect paradoxes to arise.
The true solution is a gradient of copyright terms based on the sorts of measures mentioned. In this example, maybe a 6 month copyright under the Lucky Break Million Monkey clause.
PS: Compliments to the chef for reinstating top post. Controversial and unpopular .NE. wrong and... .NE. against post policies. Thanks.
I've actually thought about your notion of some sort of gradient/curve for copyright for the last day or so (something similar never crossed my mind before). I actually like the overall idea. In fact, I like it a lot.
Without getting into the muddy trenches, the big concern I see is that in the binary 'copyright/non-copyright' system we currently have the abuses are just overtly obscene. I'm a huge fan of semantic debate and argument, but the fools currently mucking up copyright for everyone have been able to do so when there are only two possible outcomes to any argument.
If it wasn't so detrimental to the general consumer it would be hilarious, but it really is shit. My concern is that debates rage for years over a single point, a curve introduces a lot of new points that gum up the works even more. The idea is certainly interesting though!
There's a bogus claim that doesn't appear to fit with the facts of the case.
The issues of originality are basically:
(i) specialities of angle of shot, light and shade, exposure and effects achieved with filters, developing techniques and so on; (ii) the creation of the scene to be photographed; (iii) being in the right place at the right time.
Slater didn't set up the shot, the lighting, etc. Slater didn't create the scene to be photographed. And finally Slater wasn't in the right place at the right time: he wasn't actually there at all.
Of course, if he'd set up the shot with a "photo trap" type system, then his absence wouldn't matter, but what even he agrees happened was that he just left the equipment while he wandered off, and the monkey did the rest; critically, he didn't arrange for the monkey to be able to get the camera, he just left the thing alone while he did something else.
Now, had he been smart about this, he'd have ONLY released images that he had post-processed in some way (thereby adding his creativity), but that of course reduces the "authenticity" (and thus the value) of the shot.
The fundamental flaw here is that by promoting the shot as a selfie, he's explicitly admitting that he didn't take the shot. Given he didn't take the shot, it's a desperate stretch to claim that Berne automatically gives him copyright; he wasn't the creator.
Sure, you could argue that he was instrumental in creating the shot, because he set up the camera and collected the results. But under that thinking, you'd have to grant a copyright involvement to the FedEx driver who delivered the camera to you...
Slater doesn’t fulfill every single criterion – but then he doesn’t have to. He has to meet enough. As Tierney explains:
I'll do you one better, one cannot copyright something occurring naturally in/from nature, (a rock, the tree, honey). Therefore unless we are now adding monkeys to our special classification that we have put ourselves in (separate from nature), this is basically the same thing as a bee making honey or a crow using a nail to open a nut. No copyright.
Thank you for the analysis.
Out of interest, has Mr. Slater registered his work in the UK IPO?
Also, did Wikipedia ever get hold of the original photo (presumably the RAW file), or of a copy? In the latter case, would not the copy be considered a derivative work, itself subject to copyright even if the original was in the public domain?
For individuals, including creative professionals and very small companies, there is zero real advantage in filing for copyright for their individual works. It's a different thing for brands and products where you want to be sure nobody else in your space has a brand or product that could be confused with yours. In those cases official registration of copyright is a great convenience as it serves as a centralized clearinghouse of sorts that helps protect you against allegations of infringement. Take my word for it, having some hillbilly come out of left field and sue you for 'stealing his products name' sucks.
Beyond that however, you quickly get into math where the costs of protecting your property exceeds the value of the property. No matter the country, the agencies responsible for granting and organizing copyright are not active participants in protecting that copyright. It's 100% on you to be on the lookout for those infringing and to pursue legal action against them.
As you might imagine, that's an outrageously expensive prospect that grows continuously more expensive as time passes. It's kind of like hiring Congolese mercenaries to guard your strawberry patch. It's extreme overkill that requires enormous resources to maintain. That's why copyright is automatically given to the original creator. It's there if you need it, but not only will most creatives never have a need to enforce their rights, by the time it's all said and done any such enforcement is likely to result in a break even situation (or even a losing situation).
Hi DJ. While I do not disagree with your analysis, it does go against the advice I was given (many) years ago while I was an expat in France. Back there and then, it was common for works such as books, articles, theses, and software source code (!) to be registered at the copyright office. It costed next to nothing and it actually helped prevent (and in the extreme, settle) plagiarism, as well as people taking your code and claiming it to be theirs (source code distribution was a lot more common back then).
You are totally correct about the cost/benefit ratio and the expense of taking enforcement action as an individual, but in my experience--long ago and in a different country--there was the non-insignificant benefit of dissuasion if you made it known that you had deposited a copy of your work with the copyright office.
Hence my asking.
A derivative work is a version that has been *changed* in some way, and the person who makes the changes can claim copyright in the changes, but not in the derivative work as a whole. When you licence your next novel, make sure you forbid derivative works as a condition of the licence.
who wins, so far as wikipedia's concerned, they've lost already. MANY people are now not going to donate again, and I'm certainly not going to be donating my time to (what in my case are usually minor) edits of their 'free' (read: stolen in this case) encyclopedia.
Also, Jimmy Wales is a cock
Welcome to ten years ago, the hate train on Wikipedia left the station a long time back.
But what makes you think they've lost anything? You aren't important, you make a few minor edits and haven't donated money, so how can you speak for those who do? Your opinion means nothing to them, especially if more support it than don't; from what I've seen, that's the case -- Wikipedia is huge with the "information wants to be free" (aka freetard) crowd already.
>>"You aren't important, you make a few minor edits and haven't donated money, so how can you speak for those who do?"
I've donated money to Wikipedia in the past as I stated last time El Reg reported on this. I think about £200 in total. I'm fine with the position of the person you're replying to. They wont see any money from me for a long time, after this.
Your opinion of Jimmy Wales really doesn't matter, the photographer made a big deal of this photo being entirely created by the monkey and thereby expressly putting Wikipaedia in the right. It certainly won't affect my giving of money and time to the project, and it may very well tempt a lot of other people who object to the insane copyright maximalist views of their "rights". Wikipaedia is going in to bat for the public domain, that's you and me!
"Wikipaedia is going in to bat for the public domain, that's you and me!"
Firstly, not everyone is about self-interest. I believe Dlater should be compensated for his efforts if we want the product of them. Secondly, I genuinely believe I (as a non-producer member of the public) benefit more from living in a world where people ARE compensated rather than expect their work to be taken from them and thus may simply not bother anymore.
I, on the other hand, am a "producer" of copyright material for which I am paid. I am also paid for non-copyright work. I believe that both need to be correctly compensated and have never argued against the existence of copyright. What I object to is the absurd extensions of copyright thqat have disgraced our world for years.
In what way does increasing the copyright term for already existing work encourage creativity and extend availability of art to the rest of us? In what way does preventing transformative reuse help society? What creativity is encouraged by attempts to copyright alphabetical lists? And what creativity is encouraged by allowing people to be rewarded for allowing their property to be stolen!
The camera owner made a great play of not being involved in the creation, had he told a different tale he would have had an arguable case, but the picture would not have been newsworthy, what he appears to want is a cake and a full stomach ...
> Answer: the person who took the picture.
No. That is not true. Many companies have employees and contractors who take photographs or produce graphic or text work that is copyright. If the person is an employee on salary or wages and uses equipment and media belonging to the company then regardless of who 'pushes the button' the copyright belongs to the company. If the person is a contractor who has his own equipment and media then the copyright belongs to him though it may be assigned to the company in the contract, or the company may just have a license for those items.
In the case of Slater vs monkey there is no question of ownership of equipment, thus the monkey was acting as an unpaid employee or volunteer and has no claim to any copyright which belongs to the equipment and media owner.
Nor does your 'total stranger' have any claim. In the absence of any prior or negotiated agreement if they claim ownership of _anything_ related to or derived from that camera or media owned by you then it would theft.
> No. That is not true.
Agency requires a contract! This is true in all Berne convention nations. The ONLY time agency is implicit is if the creator is both traditionally employed (not contracted) and the creation is part of their job duties. In all other cases the copyright would either be with the one who pressed the button at the right time, be shared with the one who edited the raw into a final, or simply be in dispute.
How can you possibly defend the idea that a random stranger firing the camera falls under an agency agreement?
> Agency requires a contract! This is true in all Berne convention nations.
> The ONLY time agency is implicit is if
So you claim that a contract is _required_ and then state that it can be implicit. Which is it?
> How can you possibly defend the idea that a random stranger firing the camera falls under an agency agreement?
A random stranger pressing the button may come under one or more situations:
* An implicit contract that they are acting as an agent.
* A trespasser or TWOCer 'stealing' the use of your equipment.
In neither case are they entitled to own the copyright.
For example if you ask someone in the street to take your photo with your camera it does not give them the right to sue you if you show that photo to your parents, or even if it is published (say, on Facepalm). It is implicit that they are acting as an unpaid agent.
Working for a largish law firm, I recall a conversation with a colleague related to a court case where I ventured an opinion based on what the law said.
He pointed out that at law school he was taught that there are three possible interpretations to any law.
First is going by what the law means by a strict interpretation of the words in the law in question.
Second is going by what the law was intended to mean by the person who wrote it.
Third is taking the words, and (if applicable) the intent of the law and then explaining to the jury what you want it to mean.
If I work for a company, and I do some video shooting with their equipment, even as part of my job specs (say you are hired as a cameraman) _I_ own the copyright UNLESS there is a SPECIFIC, EXPLICIT contractual language that gives the corporation the copyright. The employment contract (if you are an employee) must state explicitly (like many I've seen) that the employer owns any copyrights in work you have done for them. It must be a SIGNED contract.
Say I work as a burger flipper at Bobs' Burgers, and the manager hands me a camera and says "Take some photo's of the staff for the staff newsletter", and i do. If the employment contract doesn't EXPLICITLY state that Bob's Burgers owns the copyright to any creative work I do while employed by them, then _I_ am the copyright owner, no matter who owns the equipment. It is case-law that a work-for-hire, which is what it's called when you employ someone to create something for you but you retain the copyrights, not the actual creator (e.g. working as an artist for an advertising company, or the cameraman for a TV station), must follow some explicit, specific language to be a valid work-for-hire contract that bestows the copyrights on the employer rather than the creator.
Also, it must be noted that in this case, the photographer has admitted that he did not set up the shot, or plan to leave the camera in a location and 'see what happens'. The photographer absent-mindedly left their camera unattended while doing some other task, and in the photographers own words, "the monkey stole the camera", and took the photos.
> If I work for a company, and I do some video shooting with their equipment, even as part of my job specs (say you are hired as a cameraman) _I_ own the copyright UNLESS there is a SPECIFIC, EXPLICIT contractual language that gives the corporation the copyright. The employment contract (if you are an employee) must state explicitly (like many I've seen) that the employer owns any copyrights in work you have done for them. It must be a SIGNED contract.
Certainly it would be sensible to have a specific contract but, for example, in the USA:
"""If an employee does not have an employment contract and creates a copyrightable work in the scope of his or her employment. U.S. copyright law includes a statutory provision called the "work made for hire" doctrine, which provides that the employer and not the employee/author is the author of a work prepared by an employee within the scope of his or her employment. Because the employer is considered the "author" of the work, the employer owns the copyright in the work under Section 201. """
"""The Supreme Court stepped into this fray in 1989. The Supreme Court adopted the third approach-an employment relationship was to be determined by applying agency law principles. The court enumerated several factors that are relevant in determining whether the hired party is an employee under the general common law of agency. These factors include the skill required for creating the work; the amount of control the hiring party has over the hired party; where the work is performed; the method of payment of the hired party; and the source of the hired party's tools, office space, and other instrumentalities of doing the job. The court also considered whether the hiring party has the right to assign additional projects, whether the work is part of the hiring party's regular business, whether employee benefits are extended to the hiring party, and the tax treatment of the hired party."""
"""David Radack is a partner in the law firm Eckert Seamans Cherin & Mellott"""
So, in general, your opinion is in conflict with that of lawyers. Note specifically "the source of the hired party's tools".
> Say I work as a burger flipper at Bobs' Burgers, and the manager hands me a camera and says "Take some photo's of the staff for the staff newsletter", and i do. If the employment contract doesn't EXPLICITLY state that Bob's Burgers owns the copyright to any creative work I do while employed by them, then _I_ am the copyright owner, no matter who owns the equipment.
Wrong. If your employer instructs you, during the hours of your employment, to use his camera and to take specific photographs then you are acting as his agent and have no ownership of copyright.
> If the person is an employee on salary or wages and uses equipment and media belonging to the company then regardless of who 'pushes the button' the copyright belongs to the company.
The fact that it is the company's equipment is irrelevent. The assistants agree to assign copyright as part of their contract of employment. This is a common arrangment.
In this case, the monkey has made no such agreement. It cannot legally do so. If it was a legal entity, it could also be prosecuted for theft.
The situation is a legal anomaly, and grey edge case that will likely be settled in court by precedent.
There's so much wrong with this it's hard to know where to begin. The monkey never agreed to any form of contract and was neither an employee of nor an agent of the photographer, legally speaking. Therefore the 'work for hire' doctrine does not apply.
Furthermore, the word 'theft' is often bandied about by rights activists. The reason the courts do not call duplication of an image 'theft' (rather, it's at most an unlicensed copy) is that with theft there must be an intent to permanently deprive the true owner of the image. If the owner still has the original, there can be no theft, as has been held many times in the courts.
Of course, with the current trend to severe sentences for unlicensed copying, the offender may wish he had been charged with theft.
-- Mr Slater. I think that going to Indonesia and getting a monkey to press the trigger was an act of considerable effort and iingenuity. Precisely the kind of thing copyright rules should protect. Not the kind of thing you should rip off, even if you can.
I also think that if curating and editorial selection is not important, Wikipedia (and it's authors) don't have any particular claim to copyright: "Original" research is not permitted at Wikipedia
Monkeys are pretty smart. I would not assume that the Monkey did not know what a camera is, and did not deliberately decide to pick up the camera and take a picture, knowing full well what cameras do.
Now there may well be legal impediments to monkeys registering copyrights, but assuming that they don't understand cameras would not be a great argument.
Copyright laws usually use the term "person" as owning a copyright. And under legal definitions a 'person' is either a "natural person", that is a human being, or a corporate identity. Yes, a corporation is "a person" for the purposes of the law. If a law wishes to exclude corporations from something then it usually refers to "natural persons" when excluding corporations.
Copyright laws apply to HUMANS. What a monkey did or did not do is irrelevant. The only person with any creative input is David Slater.
Also Slater as a professional photographer would have worked in RAW format. He would then have processed his "negative" in (say) Adobe Lightroom to produce the final result.
He owns the copyright of this final work irrespective of the mad ramblings of the US Copyright Office Office and Jimmy Wales.
As with almost everyone else here, IANAL, but I suspect that *basic* tinkering of RAW files (e.g. tweaking brightness, contrast, sharpness, other straightforward technical fixes, etc.) probably won't be considered sufficient by a court to confer any additional copyright.
OTOH, if the changes made *were* sufficient, the interesting issue would be that Slater could (theoretically) have only released the modified version- with his copyright resting in the changes made. Even if the original was non-copyrightable, no-one would have access to it, and presumably Slater would be under no obligation to release it.
However, I suspect that changes sufficient to confer additional copyright would destroy the whole raison d'etre of the original photograph, i.e. it wouldn't simply be a "true" simian selfie.
(Disclaimer: The above pre-supposes the original is non-copyrightable for the sake of argument, re: the RAW file modifications. I'm not arguing either way this is necessarily the case in reality.)
The problem is, this guy can't have it both ways.
If the monkey stole the camera, decided to point it at his face and push the button, whether intentional or otherwise, it is very much an act of nature. the only reason to claim copyright would be that he owned the camera, which is not a valid one.
If, on the other hand, he GAVE the monkey the camera, with the intention of letting it take a picture of itself, it's not really a selfie, the monkey was just there to push the button. That would make it just another picture of a monkey, relieving it of most of its value.
TL;DR, it's either an uncopyrightable monkey selfie or just a picture of a monkey where the cameraman goaded the monkey into pushing the button.
> the only reason to claim copyright would be that he owned the camera, which is not a valid one.
It is a completely valid reason to claim copyright and one that is used continuously by companies that have employees. If the company supplies the equipment and media to employees then the company owns the copyright.
>> the only reason to claim copyright would be that he owned the camera, which is not a valid one.
> It is a completely valid reason to claim copyright and one that is used continuously by companies that have employees. If the company supplies the equipment and media to employees then the company owns the copyright.
Most employment contracts have terms in them along the lines of "any work done by the employee is owned by the employer. The employee agrees to assign all copyrights in any work created while an employee to the employer".
If an employment contracts neglects such language, then the employer, even tho owning the equipment and perhaps even directing the creation of the work (take photos at the corporate luncheon), does not own the copyright.
This is the truth. The fame of this photo was the story that went with it. It is an amusing photo, but it simply would not have gained the popularity it did without the accompanying tale.
But that tale means the United States copyright office won't consider registering it.
That's the catch 22
> It says a lot about copyright in general when a monkey has more rights than the owner of the equipment.
As far as I'm aware, Mr Slater is free to do with the pictures whatever he wishes.
Pretty much all the legal arguments are that the monkey has no rights whatsoever.
In what sense do you think that the monkey has more rights than Mr Slater?
It used to be that one of the ways of settling the ownership argument, in Britain, was to ask who owned the film. It's a fairly sensible rule for some kinds of dispute, such as a press photographer who wants to take some pictures on his day off. But the technology has changed. Has the law caught up?
@Dave Bell; "It used to be that one of the ways of settling the ownership argument, in Britain, was to ask who owned the film."
Does that refer to legal ownership of the *physical negative or slide* or of the *copyright*?
The two are different things, and it's quite possible to own a one-off item that someone else retains the copyright in.
It's entirely clear that *I* own the copyright because...uh...DMCA? Seriously, though: I can understand those of you wanting to recognize Mr. Slater's effort with copyright protection. But can't we also agree this is very much an edge case where reasonable people can disagree? Let's say I went to great effort to sneak a camera in an astronauts personal bag (without breaking laws) on a flight to the ISS. And let's say for whatever reason said astronaut does use the discovered camera to take a selfie. Do I get a copyright because I put a lot of effort into getting the camera into the bag in the first place? Maybe...but I say no. The button masher gets the ownership. What if I set the camera to fire as soon as it was picked up at an appropriate angle and I scored a selfie that way? Then *I* took the picture, albeit indirectly, and so I own it. If you want to argue simians are equivalent to an automated mechanism, maybe that works in court but I don't buy it. What if I gave cameras to an isolated tribe of humans with no experience of cameras and they took some selfies. Do I own it because they're unaware and therefore are undeserving of equal protection under the law? What if I left a dozen cameras around the city and they were all picked up and used for selfies and other people published them. Do I still own copyright because they were my cameras, my idea?
> Ownership of a device doesnt make you a creator.
No, but it is likely that it makes the device owner the owner of the copyright.
Just as a programmer that is an employee writing programming code on the company's equipment does not own the copyright of what he has created so it is with photographs or any other material.
Do you think that in Universal Studios the cameramen can sell the movies ?
...everybody has them. Cats have 9.." I'm paraphrasing some comedy text I read and which author I can't recall.
Seems like everyone is happy making opinions known including the USCO.
But like Andrew wrote here, disputes can only be sorted in courts. So we'll all have to wait and see. It's just that Wikimedia has much more time (aka money) spend waiting than the photographer.
Now, my nipple: If I were the judge I'd be very interested in the exact circumstances that lead to this capture. Because from what I read of the photographers own account I'm not sure if he has enough claims based on the criteria set in previous cases:
"(i) specialities of angle of shot, light and shade, exposure and effects achieved with filters, developing techniques and so on; (ii) the creation of the scene to be photographed; (iii) being in the right place at the right time."
Of these I can only see (iii) applied here. That is, if being in Indonesia counts as being in the right place at the right time.
Pay the man his f**king money. They've obviously had promotional benefit out of it but trying to use pathetic technicalities to avoid paying the man is reprehensible. Always the f**king photographer that gets screwed over and it's just not right, especially when it comes from organisations and people that should know better.
All these definitions and debates are focusing on post-hoc artistic speculation and uniqueness / recreatability tests - that's an is it art question not a who does the picture belong to.
Previously these uniqueness / artness arguments are only really debated in rip-offs, derivative works cases (as in the london buses over westminster).
If copyright is automatic upon creating the image, then the person who can prove earliest provenance, and perhaps access to higher-quality/uncropped originals/raws, or documentary evidence, has the strong case. Simple as.
How copyrighted is CCTV footage?
How copyrighted are (good?) paintings by young children with artist had a low IQ or couldn't appreciate copyright law?
How about famous dead artists who couldn't appreciate copyright law because it didn't exist then?
I'll try a more objective approach. I've changed my mind a couple of times on this, but this is where I've ended up.
We can throw out all the little-guy/$BIGCORP stuff as a fallacious appeal to fairness. The law as written, or as decided in the courts, is under no obligation to treat somebody kindly because the other guy's bigger.
"Slater has been obliged to hire legal help costing thousands of pounds to defend his work, arguing that Wikipedia’s continuing publication harms his livelihood."
His livelihood has certainly to some degree been harmed; but that doesn't mean he has any case.
"The law isn’t hard to understand."
Heh. And coding is easy, and any damn fool can design a bridge. Of the three criteria supplied, Andrew Orlowski doesn't say which he thinks Slater actually meets to a degree which would satisfy a court.
"If he checked the angle of the shot, set up the equipment to produce a picture with specific light and shade effects, set the exposure or used filters or other special settings, light and that everything required is in the shot, and all the monkey contributed was to press the button, then he would seem to have a passable claim..."
Note the conditional If. Slater's quoted as saying - before copyright became an issue - that monkeys stole his camera while he was absent: "He must have taken hundreds of pictures by the time I got my camera back, but not very many were in focus. He obviously hadn't worked that out yet." I think he would have a very hard time arguing that he had creative control over the process, if we believe this earlier version. His later version of events contradicts the earlier, to some degree: adding a description of intent and setting up the camera; which, if we believe it, would give him a stronger case.
"Slater made choices such as choosing the location, the equipment, where it was placed – in front of the monkeys – and choosing what to keep and discard."
Location and equipment would very likely fall under the non-creative "sweat of the brow" element in US law; I don't know what weight UK copyright law would put on it. As to "...where it was placed..." it was moved by the monkey, as we can see from the various photos which have been released, so I can't see that being persuasive. "...choosing what to keep and discard..." is a creative act in forming e.g. an anthology, but I've never heard of that conferring copyright on a single image. If I do an image search and choose a number of public-domain images, I might own copyright to the selection, but for me to gain copyright to a single image by simply choosing it from a selection would be perverse.
"Whether you're on Team Slater or Team Jimbo, it's going to court"
Is it? Do we know that?
I hope he's receiving legal advice along the lines of "Firstly, what will you gain if you win? - a few thousand? It's not worth the risk of pursuing. Secondly, you'll be asked about your various versions of what happened, and how they square with all the photographs obtained. Are you comfortable with that?" Obviously it would make an interesting case for some organisation to take up on his behalf, but I haven't heard that any have done so; which may be telling.
I may well be utterly wrong about all or some of this, which should go without saying; but I don't see that Andrew Orlowski has made any form of actual case in law; as opposed to "$BIGCORP is being selfish!"; which is after all what $BIGCORP has always done.
Well, I'd still expect the courts to go in favour of the photographer. No complaints there. It's just if an educational resource (no matter how we may rate it's value) should need to ask for permission or pay to use it in this case.
Slater says he made a mere £2,000 in licensing the image - which, we're told, only just covered his travel expenses to Indonesia to obtain the photo.
I am sick of hearing this. He never knew he would get this shot and, if he hadn't got lucky, he would not have had any photograph at all which commanded anywhere near the royalties he has received.
I don't mind him arguing he owns copyright and is entitled to licensing fees - I believe he does and is - but that his outlay was only just covered is an irrelevancy, was a risk he took when he set off. Unless he can prove that he went with the deliberate intent of taking 'that photograph' as the means to break even, and from what else he has said about it, it would appear not.
Owner of the camera obviously.
Freelancers often take photos by leaving a camera on a tree overnight. Does that image belong to the passing animal? Course not. Belongs to the owner of Camera.
If a person is hired to do a photo then there will be contract between him and say the BBC.
So all images become the copyright of the BBC as agreed by that contract.
If the BBC only ask for limited use of said image, then copyright remains with owner of material.
The original images taken by the monkey would most likely have been RAW files.
Slater then went through these discarding all the junk, noticed one or more that looked promising, and he would then have used Lightroom (or whatever) to work with that RAW file to create the final image. That final step probably involved cropping, sharpening, setting the colour balance exactly right, and probably some minor cloning to get rid of sensor dust spots, monkey spit etc.
The monkey pressed the button, but Slater made that image.
I would have to see how much work was done post process. If the guy took the monkey image, then post processed it for colour/size , then by default the copyright is his, and as such since wikipedia did not have access to the source image by the monkey, they are at fault.
However looking at the pictures , I would strongly suspect that the monkeys did not take them, rather they were offered a 'treat' to get their arms into the right position for the snaps.
As they stand correctly sized up, symmetrical and in focus….. please i've seen the monkeys in HK at play…
Is when I hire a photographer to take some pictures, the effing copyright of said pictures costs more than his advertised rate. No other profession is as duplicitous. When I hire an electrician, or plasterer, or gardener, do they retain ownership of their work? Hell no, I can use and abuse their work as I see fit. Copyright law, like all law is an Ass.
You really don't understand that when you hire an electrician, you hire him to wire one installation? You cannot then use his work to rewire 10 or 100,000 more houses at no extra cost to yourself. You want your lawn mowed, it will cost less than mowing all the grass in the world. There's no need for copyright, because the value for both parties is fixed to the amount of work.
The only value of a photo is its reproduceability, and that value in going to be different for 1 copy than it is for x copies forever, and being able to sell the image to the rest of the world for life+70 years. Probably you don't actually need or require copyright anyway. You want a license for whatever use you envisage, and if you need exclusivity, that too can be fixed into the contract. This will be vastly cheaper.
It's like taking a taxi. More use = more money. If you want the title to the car expect a higher price.
Most photographers just don't like selling copyright anyway. Not many want to look back on their life's work as just a pile of paid yellowing bills. We actually care about our work. It's what motivated us to try and get good at it in the first place.
Things that occur to me:
- monkeys cannot own copyright, since they have no status in copyright law. The monkey is just an arbitrary event, qualitatively no different from an equipment fault that caused spontaneous exposure
- the photo would remain, like Schrodinger's cat, of indeterminate reality until extracted from the camera, and post produced by Slater - none of which the monkey could have done, or did
- Slater's post work would be sufficient to assert copyright, ie it is not purely mechanical but involves creative input
As far as I can see this just shifts the creative input required for copyright, from the moment of exposure to the post-production, without which there never would have been a photo except as an unobserved abstraction.
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