Monkey Business: Can A Monkey License Its Copyrights To A News Agency?

from the i-don't-think-so... dept

A year and a half ago, we wrote about a movie that was entirely filmed by chimpanzees, and wondered about who held the copyright on it. Technically, in most cases, whoever makes the actual work gets the copyright. That is, if you hand your camera to a stranger to take your photo, technically that stranger holds the copyright on the photo, though no one ever enforces this. There were some different theories made in the comments about who actually holds the copyrights, but no clear agreement. Of course, the whole discussion was purely theoretical, because it wasn’t like anyone was concerned about the copyright.

However, now we have a similar, but different, story where I think it’s a very valid question. Mr. LemurBoy points us to a story involving an award winning nature photographer, David Slater, who was in Indonesia in a national park. At some point, he left the camera unattended, and apparently a macaque monkey wandered over and took this hilarious self-portrait:

Now that’s the best photo of the bunch, and appears to have no copyright notice on it (though that doesn’t mean it’s not covered by copyright), but two of the other photos, which the article also claims were taken by the monkeys, do have copyright notices, with the claim being that the copyright is held by the Caters News Agency.

So here’s the legal question: how did the copyright get assigned to Caters? I can’t see how there’s been a legal transfer. The monkeys were unlikely to have sold or licensed the work. I’m assuming that it’s likely that the photographer, Slater, probably submitted the photos to the agency, and from a common sense view of things, that would make perfect sense. But from a letter-of-the-law view of things, Slater almost certainly does not hold the copyrights on those images, and has no legal right to then sell, license or assign them to Caters.

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Comments on “Monkey Business: Can A Monkey License Its Copyrights To A News Agency?”

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153 Comments
Marcus Carab (profile) says:

How are animals generally treated under laws that apply to people? I mean, monkeys are highly intelligent but – so far – I don’t think they enjoy all the same legal protections afforded to people.

So couldn’t the photographer argue that the monkey is really just a glorified tripod – a part of his apparatus for taking the photos?

ltlw0lf (profile) says:

Re: Re:

How are animals generally treated under laws that apply to people?

We actually give animals less legal protections (for copyrights) than we give inanimate objects and fictional concepts. Pretty sad, really. A corporation can own a copyright, but not an animal. Of course, corporations are probably not far off from removing our ability to own copyrights because we are animals.

Jose_X (profile) says:

Re: Re:

>> So couldn’t the photographer argue that the monkey is really just a glorified tripod

And what happens if your camera falls from your hands in the forest when no one was looking and throws a Pulitzer picture?

What if you threw your camera?

Honestly, the glorified tripod added its own element of creativity, yet, in the short run, I can see a court precedent that leads to more and better trained monkeys used as loyal servants in the photography business.

In the end, however, the monkeys will get the copyright after a Constitutional amendment which will come 20 years after they get the right to vote and 20 years before they repeal the right of humans to vote.

Dan Moulding says:

Re: Re: It's not even copyrightable

You are absolutely correct.

Though it may seem strange at first, this photo was a naturally occurring phenomenon (since a non-human element of nature was the direct cause of its creation). This means a few things:

a) It’s not copyrightable any more than I can copyright a blade of grass growing in the ground (and I mean copyrighting the actual blade of grass, not a photo of it).

b) It’s not even properly “in the public domain”. Public domain is for copyrightable items (which this is not) that have no copyright holder (because the copyright has expired, or for some other reason).

c) Anybody (including the monkey) who claims to hold the copyright to this photo is full of it.

Lisa Westveld (profile) says:

Well, aren’t those apes (monkeys) owned by someone? Technically speaking, wild animals could be considered state property while animals in zoo’s would be owned by zoo owners. And since the apes cannot do their own business, their owners are the ones responsible for anything they do, right?
So, in this case the owner of the national park, that holds the monkey that snapped the picture, would be the copyright owner. And depending on the rules for this national park, it could be that a license is granted to the owner of the camera for this picture to redistribute it even further.

PrometheeFeu (profile) says:

Re: Re:

I could see a different theory. Let’s say I fall asleep next to a bunch of cans of paint, they tip over and I roll in them creating a picture on the floor. It seems pretty clear that because I originated the chain of event which led to the picture’s creation, I own the copyright. (Even if that’s stupid) So I think here is the same case. By abandoning the camera near monkeys the photographer originated the chain of events which led to the photo’s creation. So it seems he owns the copyright.

John Doe says:

Animals have rights too...

…just ask PETA.

Seriously though, this is hilarious. Maybe it is considered finders-keepers. Which would bring up the question if the monkey made off with the camera and someone else found it, would it be their picture?

BTW, that is an awesome photo. Beats most any self portrait I have ever seen.

Anonymous Coward says:

An “author” for purposes of Title 17 falls into only one of two classes. The “author” is either a “natural person” or a “juridicial person” (e.g., corporation, LLC, etc.).

Accordingly, there can be no copyright associated with any of the photos taken by the animals since they cannot be considered as “authors”.

This does not mean that no “work” can later be prepared that is deemed in and of itself to comprise an independent work to which copyright may pertain. See: Section 101 definition of “compilations”. If the definition of a compilation is met, then a copyright may be attached to the “compilation”. However, no copyright attaches to the individuals components of the “compilation” that standing alone are not subject to copyright.

It is virtually a given that the notices shown on some of the photos carry no legal effect since the photos are outside the ambit of Title 17. If there is any legitimate legal claim to the individual photos taken by the animals, those claims must look to other areas of the law, which would most likely be associated with state law. For example, it can be argued that the owner of the original photo is the person who found it, but then in this case the claim of ownership extends only to the material object, and not its contents, and would be governed by general principles of personal property law.

Anonymous Coward says:

Re: Re:

Well, it depends on how you define “author” in this case. While the monkey may have pushed the button to trigger the camera, it is clear that the setup is all from the human. After all, without the camera in place, secured, etc, the money would have no image to be taken.

Would you look at it differently if the camera was automatically shooting 1 shot per second?

You appear to be taking the most narrow view of “author” possible, and I suspect the courts are more likely to allow a little more latitude than that.

Anonymous Coward says:

Re: Re: Re:

While the monkey may have pushed the button to trigger the camera, it is clear that the setup is all from the human. After all, without the camera in place, secured, etc, the money would have no image to be taken.

Without the camera manufacturer who made the camera, there would have been no image made with that camera, thus the camera manufacturer owns the copyright.
/s

Anonymous Coward says:

Re: Re: Re: Re:

Nice, but not the same. The built a tool ,they didn’t participate in it’s use.

Example of this would be say the photographer set up a rig with a huge red button right next to the camera for the monkey’s to push (as would appear is possible in the third image), or set up some sort of system to auto trigger. Did the photographer as a result set up and produce the image?

The important would be how a court would look at it. What do you think?

Anonymous Coward says:

Re: Re:

“Accordingly, there can be no copyright associated with any of the photos taken by the animals since they cannot be considered as “authors”.”

Not sure if this conclusion is correct. The photos may embody some of the human photographer’s original expression (though that’s certainly arguable), and therefore he might have a copyright interest, even though he didn’t push the button.

Anonymous Coward says:

Re: Re: Re:2 Re:

If you want a definition of “author”, you will not find it in Title 17 (nor, for that matter, will you find a definition of “inventor” in Title 35).

It is, however, readily apparent how the term “author” is used by perusing the entirety of Section 101, as well as judicial decisions regarding same. Collectively, these are known as “law”.

Chris Woodrow says:

Re: Planet of the Apes

We really should be asking the monkeys in the Rise of the Planet of the Apes! They might have a better answer.

For my sense of fairness, any proceeds coming from the sale of the pictures should directly benefit said monkey(s). Hopefully this publicity has helped raise awareness for them already!

Chris-Mouse (profile) says:

What about photos taken by machines?

Just out of curiosity, what about automated systems like security cameras and webcams? I suppose there could be a claim of some minimal creativity involved in the initial setup that determines the framing of the pictures, but other than that, the entire process, from lighting levels to the exact timing of the picture is automated. Does that initial setup involve enough creativity to allow for copyright on images that may be taken years later, or are all those automated pictures automatically in the public domain due to lack of creativity involved in taking them.
For that matter, would the courts decide that the machines do have some creativity, in which case, who owns the copyright, the machine’s owner, the installer, or the programmer who wrote the computer code that controls everything?

Anonymous Coward says:

This is a pretty hilarious story.

I think there may be a fundamental flaw with the premise that “whoever takes the photo owns the copyright.”

Copyright protection for photos is generally justified by the original creative judgment exercised in composing the subject of the photo, lighting, aperture/exposure settings, framing, etc.

So, if you set all the settings on your camera manually, hand it to a stranger, and tell them to stand on the X, don’t adjust the settings, point the camera at you, and hit the button, you may very well own the copyright in that photo because it exhibits your own original expressive decisions, and none of the button pusher’s.

In the monkey case, the photographer could argue that his own creative choices in aperture setting, white balance, etc. justify his copyright ownership. I’m not really sure if that’s a winning argument, but I am pretty sure that no court would hold that the macaque’s exercised sufficient creative judgment to own copyright in the works.

The correct result might be that no one owns copyright or the photograph maybe does/did (though questionable).

Anonymous Coward says:

Re: Re:

In the monkey case, the photographer could argue that his own creative choices in aperture setting, white balance, etc. justify his copyright ownership

In that case, if the camera was set in “auto” mode then the manufacturer could be argued to own the copyright by virtue of having chosen the automatic parameters.

Anonymous Coward says:

Re: Re: Re: Re:

While the quantum of originality needed to support copyright is low, I don’t think any court is likely find that single decision sufficient.

It isn’t a single decision, it’s multiple decisions. Aperture opening, aperture duration, white balance, focus and field of focus, etc., all carefully chosen to work together. About the only things left are pointing the camera and pushing the button, and the monkey did that.

Anonymous Coward says:

Re: Re: Re:3 Re:

Those multiple decisions are not made by the photographer when he chooses “auto” mode. Rather, he makes the single decision of choosing “auto” mode.

Right. The photographer makes only the single choice, not enough for copyright. The rest were make by the manufacturer, thus the copyright belongs to the manufacturer.

Anonymous Coward says:

Re: Re: Re:4 Re:

Actually, he choses:

Auto exposure time
Auto lens opening
Auto depth of field
Auto white balance (for digital)

He chose the lens, took off the lens cap, decided on the filters if any, etc. location, time, place… and it goes on.

and a whole bunch of other parameters, all set to auto. That it’s on a single setting or function doesn’t eliminate that they are all needed to take a picture. Certainly more than a single decision.

Anonymous Coward says:

Re: Re: Re:5 Re:

Choosing to have some other person or entity make all relevant choices is not sufficient “originality” for copyright protection, even if there are 1000 such choices.

Similarly, choosing to take off the lens cap does not show sufficient judgment, thought, or creativy to support copyright protection.

As for filters, location, time, place, that may or may not demonstrate sufficient thought, judgment, and creativity to be deemed sufficiently “orignal” for copyright protection. The “single choice” i referred to was regarding the choice to use the “auto” function, which encompasses the variables listed by the prior poster.

Anonymous Coward says:

Re: Re: Re:4 Re:

“The rest were make by the manufacturer, thus the copyright belongs to the manufacturer.”

Um…no. The rest are automatically made by a piece of machinery without any thought or judgment. I’m not sure if you’re serious about that or joking.

At any rate, if the photographer can claim some judgment/creativity in setting up the photo or its composition or something, then use of “auto” might not be fatal to a copyright claim.

Anonymous Coward says:

Re: Re: Re:5 Re:

Um…no. The rest are automatically made by a piece of machinery without any thought or judgment.

No, they were made with the forethought and judgment of the programmers. You’re not saying that programming isn’t a creative process, are you?

At any rate, if the photographer can claim some judgment/creativity in setting up the photo or its composition or something, then use of “auto” might not be fatal to a copyright claim.

The monkey did the composition. The programmers made far more decisions than did the photographer.

Anonymous Coward says:

Re: Re: Re:6 Re:

No programmer sampled the light in that particular time/location and decided how long the exposure should be and what aperture should be used. Rather, they created some algorithms for determining such things a long time ago. Of course creating that algorithm and/or program took creativity, but we’re not talking about protection for the program/algorithm.

Andrew D. Todd (user link) says:

Subject As Author.

A photographer I used to know, Fred Burkhart, now of Chicago, argues that photography is not really a visual art, but a performing art, on the part of the person being photographed. Of course Burkhart is a portraitist, and I don’t know what line he takes on landscape pictures. In his terms, photography is about what the sitter choses to reveal about himself.

http://www.burkhartstudios.com/burkhart/photos/invention.htm

As Burkhart says, he doesn’t take pictures– people give him pictures. An unusually talented photographer is not someone who knows about lighting and so forth, but someone who can draw out a subject, so to speak. Of course, in Burkhart’s terms, a lot of the debate about copyright is essentially moot. He makes his money by getting people to pay him to take pictures of them. When I knew him, back in the early 1980’s, in Cincinnati, he displayed copies of the photographs in a shopfront window in a neighborhood where his subjects were well-known. His slogan, displayed on the shopfront window, was “Improve Your Image (It’s Cheaper Than a Lube Job).” Nowadays, he puts up images on his website, high-quality monochrome images of about 100 Kbytes.

Just Another Moron In A Hurry (profile) says:

The pictures were taken in Indonesia. I think we have to consider the laws there, instead of U.S. Copyright laws.

But if we do consider U.S. law applicable, then I seem to recall a bit about how naturally occurring phenomena cannot be subject to Patents. It was cited quite a bit when DNA started getting patented. Would a similar condition apply here? Can we consider these pictures to be naturally occurring, since the monkey was just doing what came naturally?

If so, then no copyright can be applied. Someone back me up, or shoot me down here.

IANAL.

RobShaver (profile) says:

Wildlife photographers ...

Wildlife photographers often set up cameras that are triggered by an electronic movement detector. Are you saying that the copyright pictures taken by these unattended cameras belong to the animals, the state who is responsible for the animals or who?

If I set up such a camera in my yard and the neighbor’s dog triggers it then my neighbor own the copyright of that picture?

I guess we’ll have to wait for the court case.

John Doe says:

That monkey is a better photographer than I am!

The more I return to this story the more amazed I am at the photo. The monkey appears to understand the rule of thirds as he has placed his eyes perfectly. He has a tremendous grasp of depth of field. He tilted himself slightly to make the image more dynamic and he nailed the exposure.

I give up and I am putting my camera on eBay if anyone wants it.

Anonymous Coward says:

I think the first question that needs to be considered is this – If a thief steals equipment and produces copyrightable works with said equipment, are they permitted to retain the copyright on those works? Would this be unjust enrichment?

The same arguments used to deny criminals the rights to profit from their “stories” (or having those profits rendered up to victims) would seem to apply.

I think that needs to be considered first, before you even move on to the fact it’s a monkey.

GeneralEmergency (profile) says:

Amazing story and illustrates how silly copyright really is.

I simply cannot imagine how a rational jurist could ever award the copyright of this photo to the Human who owned the camera, should it ever be contested. (And it will be.)

This is a GREAT photo and will become very popular.

Imagine this scenario: I am in my backyard with my camera sitting on a table talking to my neighbor. My neighbor grabs my camera and snaps a perfect photo of a jumbo jet crashing nearby. While I may own the camera and the memory stick, I am not entitled to the copyright of that valuable photograph. I may refuse to share it or surrender it, but I cannot transfer that copyright or sell that image or even make a copy of it to my own computer since I did not snap the shutter.

I cannot see how the above scenario differs from this story. The owner of the equipment is immaterial and irrelevant with respect to copyright.

Anonymous Coward says:

Re: Amazing story and illustrates how silly copyright really is.

I don’t see it as open and shut as that.

I should think it would hinge upon whether the neighbor had permission (explicit or implied through prior relationship) to take and make use of, the camera. If determined to have been without permission, then I don’t see that holding together at all.

GeneralEmergency (profile) says:

Re: Re: Amazing story and illustrates how silly copyright really is.

Copyright does not recognize nor address the instrumentalities underlying creation. The ownership of the equipment is immaterial. If ownership of the camera determined who owned copyright on the images produced by said cameras, then film producers would not own the copyrights on the movies they make using rented or borrowed cameras.

Yes, the neighbor failed to ask permission to use the camera. But he also does not posses the photograph. You do. But you cannot make or sell copies of the photo or transfer the copyright because you did not “create” the photograph.

Much like the case of the fellow who bought the box of Ansel Adams glass negatives in that garage sale, he may posses and even sell the negatives, but he cannot make copies or sell prints as he does not own the copyright.

Ownership of the camera, glass negative, film or memorystick is completely immaterial and unrelated to copyright.

Anonymous Coward says:

If ownership of the camera determined who owned copyright on the images produced by said cameras, then film producers would not own the copyrights on the movies they make using rented or borrowed, cameras.

The difference being of course that permission is implicitly granted under those circumstances, as opposed to “theft”.

I think the question is less about the specific hypothetical incident than it is about “criminals” profiting from the “crime”.

O.J. Simpson learned about that the hard way with his “If I Did It” book and being required to turn over the profits and the rights to the Goldman family. Yes, one incident is extreme compared to the other but I don’t see that as being different in general principle.

GeneralEmergency (profile) says:

Re: Re:

In the scenario cited and in the case of monkeys, the camera has not been stolen. It is still within the immediate proximity of the owner. Once the shutter is clicked, the camera is immediately returned. Since there is no actionable criminal action there are no “criminals” here.

Your citation of the OJ case is interesting but irrelevant because the “If I Did It” Copyright and the profits were seized to partially satisfy the outstanding (and famous) wrongful death civil judgment obtained by Fred Goldman, not as part of any statutory offense or violation of Copyright law.

If your neighbor grabs your camera and snaps that one in million photograph and hands you back the camera, you do NOT own the copyright to that photo and have no rational claim to it and therefore your possession of the photo is practically worthless. But remember, while he possesses copyright, he lacks possession of the photo (which is why he is -NOT- a criminal) so his copyright is practically worthless as well.

Best make a deal with your neighbor to split the profits and draw up a contract.

But in the Monkey Photo case, the Monkey cannot enter into a contract for two obvious reasons:
1) He is a Monkey, not a person.
2) As Macaques are usually dead by 18, he is likely underage.

G Thompson (profile) says:

The monkey seems to be a resident of an Indonesian National Park, and therefore by Indonesian and even US law is considered a chattel of the Indonesian National Parks Authority, and therefore by agency a chattel (property) of the Indonesian Government.

Therefore the copyright whether in Indonesia, the USA, or upper Timbuktoo is wholly owned and rightfully so by the Indonesian Government themselves.

Niether David Slater nor Carter News have any claim whatsoever on the photo’s other than an ability to politely ask the Indonesian Government the ability to license the work for commercial purposes to which the Indonesian Government could refuse.

Personally, I would advise the Indonesian Government to fully take control of the photographs taken by their chattel and use them in a well put together tourism campaign that allows both the National Parks Authority and the Monkeys themselves to benefit from any financial windfall this may bring them.

G Thompson (profile) says:

Re: Re: Re:

Since the monkey is classified as real chattel (not land) or in laymens term “Property” to do with as the owner sees fit (look back to historic chattels such as cattle etc) any original works that is created by a chattel of its own volition, unaided in the creative process by humans is by definition owned by the owner of said chattel.

Since monkeys, and elephants who also create painted artworks (and this same legality has been brought up and proven numerous times with them) are non-persons under law, sadly for the only analogous precedents to the law you have to go back to when humans in their infinite stupidity used to own another type of chattel called slaves.

Lately there have been a fair few instances of problematic IP ownership problems in regards to animals creating unique works of art. This monkey(s) are just the latest.

george again says:

one more thought

Copy right is the right of exploting the image with financial benefits..

The owner of the rights must claim ownership. In this case the animal will not claim ownership, never.

Therefore, Caters Agency CAN Exploit the image, because the monkey will never claim ownership. BUT! I can exploit it too, because, as Caters do not own the Copyrights, they cant stop me of starting a business of lets say.. Selfportraited Monkey T-Shirts.

And I wont expect a call from the Monkey?s attorney neither.. so..

This is Public Property.

What do you guys think about it?

All Seeing Eye says:

This website may be sued

The interesting question to be asked here is – has this website been granted legal permission to display photos that hold a copyright notice from Caters News Agency Ltd? If not, I would worry as a real life challenge is probably imminent thanks to the brilliance of Google Image Search or other image detecion software, not forgetting the clever lawyers who probably work for said agency, and Slater himself who is undoubtedly searching for feedback on his images on the internet. If this site does have permission, then this thread is mute since the website owners don’t believe the monkeys have copyright!!! Whatever the legality, I am sure that the photos have done a huge amount of good for the monkeys as they are threatened daily from logging, hunting and human disturbance. They are now in all our consciousness, and that can only be a good thing. The pictures have also cheered a lot of people up around the world, sending out a ray of light in a dark world of war, economic collapse, and human greed, and surely Slater and his Agent must be thanked for giving millions the chance to laugh for once.

Anonymous Coward says:

Re:

The photos are products of nature rather than of man, as no human made any creative decisions as to framing, lighting, etc.

Humans are also part of nature, so by that reasoning photos taken by humans are also products of nature.

Therefore, IMO they should be considered to be public domain, no more copyrightable than the DNA sequence of the macaque that took the photo or the shape of an oak leaf.

Or no more copyrightable than the DNA sequence of a human that takes a photo?

Anonymous Coward says:

Re:

A simpler way to put it: Automatic copyright would exist only if the creator is a citizen of a country which is a signatory of the Berne Convention.

Except, that’s not at all what US copyright law says. US copyright law does not limit copyright to US citizens. It confers copyright to the “creator”.

Saying that US laws only apply US citizens, even within the US, would be like saying that murder is illegal in the US, but only if the victim is a US citizen and foreigners are fair game. It doesn’t work that way.

Anonymous Coward says:

Re:

No programmer sampled the light in that particular time/location and decided how long the exposure should be and what aperture should be used.

The programmer decided exposure and aperture for all such situations, including this one.

Of course creating that algorithm and/or program took creativity, but we’re not talking about protection for the program/algorithm.

No, we’re talking about the result of that creativity. In this case, the photograph. The program was just an intermediate step to the photo. If deciding aperture and exposure is enough creativity to give a photographer copyright in manual mode, then it should be enough to give the programmer copyright in programmed mode.

Anonymous Coward says:

Monkeys

“Non-persons” cannot hold copyright. The monkey is going to have a very hard time moving forward with litigation since any claims he makes with respect to ownership will be invalidated by the fact that he’s a monkey.

The question is, is it legal to claim copyright over something you didn’t create (as appears to be the case here)? Or is that copyright fraud?

Anonymous Coward says:

Without copyright...

The creative work was in putting the camera in reach of a shutterbug monkey.

Oh, so the creative work is in making the camera available to the photographer. So, in the usual case of a human photographer, would it be the camera salesman or the manufacturer that gets the copyright? (Since they’re the ones who made the camera available)

All Seeing Eye says:

The US don't own the world despite what they think

e interesting question to be asked here is – has this website been granted legal permission to display photos that hold a copyright notice from Caters News Agency Ltd?

Go look up fair use.

Fair use is a set of laws pertaining to the US only. This website does not pertain to the the US but worldwide, as all websites do. If Yanks want to be strung up by the bollocks and taken for a piss take by a random rule making corrupt Corporatocracy then so be it if that’s the society you want – you deserve it. If you haven;t realised yet, websites are worldwide, hence the www. bit of it, viewable of course in countries except those dictatorships run by similar property grabbing thieves that exist in the US (didn’t the US gain Independence from tossers in the UK like this? But you deluded “fair use” people welcome it’s return – I hope you didn’t celebrate the 4th July because let me tell you, you were better of under UK rule than what you have now!) The issue of copyright may indeed pertain to the country of origin, which is the UK in this case. Just because America has a fascist one-world planet-raping ideology (that is teetering by the minute anyway – ha ha ha), it doesn’t necessarily make US law relevant in this case. If you think fair use is a licence to steal work from “creators” to promote, financially or by reputation, your own websites, blogs, forums, etc (ie you are acting as a parasite on the back of others work to keep yourself in business or in some niche market, including nerdy viewers with nothing else better to do), then i suggest you look up the Millennium Copyright Act also. This is universal and isn’t just about what brainwashed citizens in bully boy countries like the US determine. It also applies to other people of the world who want FAIR USE, love, freedom, health, and the right to earn a living from one’s own sweat.

All Seeing Eye says:

Re: The US don't own the world despite what they think

Techdirt is in the US and covered by US laws. Go look it up.

…and international ones also. But yes, I understand that if there’s one country who famously ignores international law, treaties, resolutions its the US….and millions of people have suffered, including with their lives, thanks to that arrogance.

Techdirt is a company, real or artificial, based in the US but its content is not – it is in hyperspace. In this case its content is being possibly used without consent of the creator. “Fair Use” allows “part use” of a work for critique, in this case it appears to be using an entire works (3 photos), and entire photographs (not part photos), possibly stolen or taken from another site that may also be stealing images (www.i.imgur.com) – since these images are no longer available on that site. The photos here are totally irrelevent to the thread. They could simply be linked to – to a site that does have permission. That is my question to the webmaster and to those who like to play amateur legal advisor. It is suspicious also that TechDirt does not credit http://www.i.imgur as the source of the images that have Caters News Agency Ltd written on them. Is this a purposeful deceit? Is deceit and fraud covered by US law – or is it so entrenched in that society most are blind of it? This is most pertinent to a site that debates and questions copyright, particularly if said site believes it is above copyright law.

Anonymous Coward says:

The US don't own the world despite what they think

…and international ones also.

Nope, just US laws. If you and whatever pissant country you’re from want to try to prove otherwise, then come on, we’re waiting for you. Otherwise, why don’t you STFU, because all you’re doing is blowing hot air.

But yes, I understand that if there’s one country who famously ignores international law, treaties, resolutions its the US….and millions of people have suffered, including with their lives, thanks to that arrogance.

It’s not arrogance if you can back it up. The US can back it up like no other country can.

Techdirt is a company, real or artificial, based in the US but its content is not – it is in hyperspace.

Hey, if you don’t like it, don’t read it. Simple.

In this case its content is being possibly used without consent of the creator.

How do you know? Did you ask? What did the monkey say?

“Fair Use” allows “part use” of a work for critique, in this case it appears to be using an entire works (3 photos), and entire photographs (not part photos), possibly stolen or taken from another site that may also be stealing images (www.i.imgur.com) – since these images are no longer available on that site.

You’re so full of it. The referenced article had 4 photos. Techdirt is showing only 3, and at reduced resolution, for the purpose of critique and discussion.

But anyway, like I said, you wanna make something of it? Bring it on!

Andrew (profile) says:

Re:

Quoting from the linked Mail article, we have

“Mr Slater left his camera unattended for a while.”

“Fascinated by her reflection in the lens, she then somehow managed to start the camera.”

“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.”

These suggest that the photos were not set up by David Slater, and that the principal creative work in taking the photos (composition, framing, focus, etc.) was in fact done by the monkey.

(Incidentally, I’m also interested in how the monkey changed sex half way through the photo session.)

Renee Marie Jones says:

Copyright analysis

The analysis of copyright ownership for the photograph taken by a monkey is trivial:

1. The interpretation of all laws in the US is governed solely by the personal opinions and sensibilities of Antonin Scalia.

2. The existence of a photograph not owned by a corporation would be contrary to the corporation-centric ideology of Judge Scalia.

3. Therefore, the photograph must be copyrighted and the copyright must be owned by Caters News Agency.

Damase (profile) says:

The US don't own the world despite what they think

actually it.s the top level domain that matters. in Techdirt’s case that would actually be .us You only see the .com because the internet is in fact a US invention. Therefore Techdirt operates under US law. I agree that certain aspects of being so corporatised is negative – extremely negative in too many cases – but I disagree we would be better off under English rule. Independence wasn’t just about taxes. In fact if you read our Declaration of Independence they were a very small part. Even today modern British people tolerate extreme forms of Government interventions of daily life that simply would not be tolerated here. Point being in the end Techdirt.com is in the US and operates from US servers therefore operates under US law. Even if the business was headquartered in another country, if they want to use .com or any other toplevel domain owned by the US, they have to submit to US law.

Jason Clifford says:

Re:

I think you are wrong that having configured the camera is what determines copyright as that has no bearing whatsoever on the content of the resulting photograph but only on the manner in which the content is captured.

The content is specific to where the camera is pointed so it’s more likely that the determining factors, if there is one, must include who determined what would be photographed. In this case the owner of the camera played no part in that determination. The monkey did.

Whether that is sufficient to determine that the monkey would be the holder of copyright if copyright does exist would then depend upon whether copyright can come into existence in such circumstances.

Certainly an animal can own a copyright insofar as the copyright may be bequeathed as part of an estate, although such a bequest should probably also determine a human or corporate trustee, but can a copyright come into existence in these circumstances?

Bill Grava says:

copyright belongs to owner of the camera?

At one level (ignoring the monkeys’ inquisitiveness and dexterity), this is no different from wedging the camera someplace solid, setting the shutter timer, and running to get into the picture before the camera snaps the picture.

It would seem fair and logical to me that the legal owner of the camera would have the legitimate copyright claim. If the photographer’s assistant took the photos but the photographer claimed the credit, I could see the two of them battling it out, of course. But crediting a monkey makes as much sense as crediting a tripod or a tree branch for the timed-exposure photo.

PW (profile) says:

Assuming the monkeys did own the copyright, or simply that it wasn’t owned by the photographer or news agency, who would sue for copyright violation? Assuming the monkeys owned the copyright, then how would they have consent to sue? Otherwise said, until these monkeys can talk and assert any right they may or may not have, the photographer doesn’t have much to worry about 😉

John Thomas says:

Copyright

I am a law student who is currently a research assistant for an IP professor.

This question isn’t even arguable – the images are public domain. Animals have no property rights to begin with and the photographer didn’t take or plan the shots. They are pure accident as far as he’s concerned.

It would be different and possible arguable if he actually gave the camera to the monkeys so that they would take the pictures, but that isn’t what happened here.

Crosbie Fitch (profile) says:

Re: Copyright

Well animals do have rights, it’s just that they haven’t got round to creating and empowering a government to secure them.

Even so, I suggest you don’t attempt to confiscate any object that a monkey considers their property – they won’t listen to your explanation that because you don’t recognise their rights, they should surrender what they have in their possession.

I withdrew an empty packet of biscuits from a Barbary ape once – and had my wrist grabbed and bitten for doing so.

Fortunately, monkeys haven’t yet been brainwashed to believe they have a right to control what others do with their published photos.

Though again I suspect that if a monkey took possession of the apparently abandoned camera they used, they would not give it up without a fight. So, that’s probably the best basis to judge this on. If the monkey didn’t claim possession of the camera then the photos they took should be unprotected by copyright, otherwise if they didn’t willingly surrender the camera, they didn’t effectively consent to the publication of their photos thereon.

Amused Coward says:

The US don't own the world despite what they think

I’ve been brought to this site from reading about copyright law, as I too am an artist who relies on sales of work to live. It is my only source of income as I suspect these photos are to Mr Slater. I support copyright and the way it protects the owners of art work. I am also appauled at how the internet is abused by freeloaders of art work.

I have tried to be patient reading the crap on here, but I feel the urge to respond. I have heard before loud gobshites who uses bullying and threats to feel superior. Why do you, Mr Coward, provoke reaction on a website seemingly created to rip off the gullible who fall for Floor 64’s advert in the Insight Community section (“…using conversational marketing to supercharge your corporate advertising, blogging, strategy…”. Bullshite. You can only be a SHILL, who, to paraphrase techdirt and it’s owner, promotes the freeloading of others work and ideas. You seem absent your own artistry other than to be a gobshite, and so feel a need to grab off others. A parasite. Are you a sponser of this conversation even?

Now, it seems you can back up nothing because all of what you say is based on assumption about the photos and who is the author. Where you there? Did you speak to the monkeys? Yes you are arrogant because you cannot back much of your tripe up – this is why you rant.

This thread is to me, NOT using images under fair use because it is promoting conversation, and it is conversation that techdirt and Floor 64 use to make money. This conversation is potentially profit making, and at least, traffic generating. So, these images are not being used as fair use, due to their “advertising” role on a website that profits from conversation. I hope Caters read this before it no doubt gets the chop, but hey, maybe someone will spread some shit about this company on the internet.

I do believe though, despite my feelings, that continuing with this debate, thankfully, makes more profit for the creators, as law-abiding, non-freeloading newspapers pay for the images again to discuss copyright law, and also aids promote the monkeys too – who will ultimately get paid for the modelling session in greater protection of their home. I don;t suppose you or this site cares for the animals in any real way, other than to bring them into an argument. Millions of folk have laughed and enjoyed these photos. Why are you so persistent to try and piss on a lovely story?

Only freeloaders, rights grabbers and communists don’t like copyright, eh?

Danny (profile) says:

imgur????

Copyright is public domain, but the tangible digital print may belong to the photographer.

Strong fair use argument aside, the photographer has put his print out at imgur.com (where Mike is linking to). Imgur calls itself “the simple image sharer”.

So, if the photographer doesn’t want to share his print, why does he have it available on an image sharing site? Mike isn’t posting the image; Mike is linking to a www location where the photographer is voluntarily making the image available.

Anthony says:

copyright

“Mr Slater left his camera unattended for a while.”

If this story is true, then it sounds to me like the creation of the photograph was a natural phenomenon, so it was ineligible for the copyright.

However, the images here may or may not be “slavish copies” of the original photograph. If they are cropped, or retouched, or otherwise creatively modified from the original, then they are eligible for copyright.

If the monkey shot in RAW, then while the RAW image might be public domain, a JPEG created from that RAW probably isn’t.

Prashant says:

The first owner of a copyright is the one who either created it, or caused to create it unless otherwise expressly stated by an agreement. So if a teacher asks its students to write an exam, the copyright over the answers are owned by the teacher only.. Its a basic RULE of copyright..

If the neighbour tok the picture, he used his skill and I didnt ask him or permitted him expressly to do it.

Here, since the camera was ‘left unattended’ and the monkey took pictures from it, it was intentionally or not, CAUSED by the owner of copyright..

Hence, HE owns it !!!

doughless (profile) says:

Re: Re:

The only time you own the copyright (without a contract or work for hire) when you “cause it to be created”, is if you directly set up the chain of events to create the picture, and there is no other creative input from another person. Otherwise there would be far less joint copyrights, or works for hire wouldn’t need contracts or separate laws to exempt them from termination laws.

In your example, the teacher has already likely created the entire exam, and she absolutely would own the copyright on the compilation of questions and answers. A student’s separate answers, assuming that they have enough creative value to be copyrightable and that they are different enough from the teacher’s original answers, are absolutely owned by the student.

If you ask a neighbor to take a picture, even if he is using your own camera, he absolutely owns the copyright; if you also had creative input (subject matter, lighting, framing, where to stand, when to take the picture), then it’s possible you would both own the copyright. Only if you could prove that your neighbor had absolutely no creative input (you set up the camera on a tripod and told him when to push the button), then you might own the full copyright.

The entire thing that is up for debate here is if the chain of events this photographer set up, qualifies for enough creative input to qualify for copyright. Even if it does qualify, it’s still extremely tragic that far too many people have never even entertained the idea that it is entirely possible for something to be created without being copyrightable.

Prashant says:

The first owner of a copyright is the one who either created it, or caused to create it unless otherwise expressly stated by an agreement. So if a teacher asks its students to write an exam, the copyright over the answers are owned by the teacher only.. Its a basic RULE of copyright..

If the neighbour tok the picture, he used his skill and I didnt ask him or permitted him expressly to do it.

Here, since the camera was ‘left unattended’ and the monkey took pictures from it, without her skills or an agreement, irrespective that it was intentionally or not, CAUSED by the owner of camera and hence makes him the OWNER of copyright..

bhull242 (profile) says:

The US don't own the world despite what they think

I know this is years later, but I just have to point this out.

Commercial use absolutely can be fair use. Otherwise, use in news articles wouldn’t be considered fair use. In fact, use of an image to promote discussion, whether or not you profit from said discussion, is a pretty clear case of fair use. Techdirt making use of the image for profit is largely irrelevant to the question of whether this use is fair use.

Seriously, who pays for a photo just to discuss who might own the copyright for it? If you don’t know who—if anyone—owns the copyright, who do you pay, anyways? Plus, that makes it newsworthy, which—again—means using it for discussion, criticism, or journalism is inherently fair use, commercial or not.

There’s also a reasonable argument that the photos in question are in the public domain, which would make the issue of whether it’s fair use moot.

I’m all for paying creators their due, but the whole point of the article is to discuss who the creator actually is, so I don’t see how that applies here.

As for use of an entire work, that too can be fair use. Put it this way: how is someone displaying an entire photograph to, say, provide artistic critique of it not fair use?

I also don’t get why you think that the other commenters are trying to "piss on a lovely story", or how that’s relevant to this discussion. Nor do you explain why you believe that Techdirt or anyone who’s disagreed with you here doesn’t care about the monkey other than to bring them into an argument or why that matters.

Finally, regarding applicable laws, Techdirt is based in the U.S.; therefore, the SPEECH Act says that U.S. laws regarding fair use (or laws that protect free speech at least as well as U.S. laws) are to be used here. Otherwise, the judgement is unenforceable in the U.S., even if the content is in "hyperspace" (which it isn’t, really; I think you meant "cyberspace", but that’s besides the point). You also seem to misunderstand how jurisdiction works. Basically, it has to be either where the defendant is (which is the U.S.) or where the actual offense occurs (in this case, also the U.S., because that’s what the law says for copyright infringement with a website). There’re some other details regarding "minimum contact", but based on existing case law, that doesn’t really apply here.

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