Can We Subpoena The Monkey? Why The Monkey Self-Portraits Are Likely In The Public Domain
from the do-monkeys-believe-in-the-public-domain dept
So our post concerning the takedown request from Caters News Agency over the monkey self-portraits has stirred up quite a lot of interest and discussion around the globe. I wanted to revisit the issue a little more focused on the legal side, and why it seems quite likely that these images are very much in the public domain (which would also suggest that an actual takedown notice (rather than a simple request, as happened here) would represent copyfraud.
First up, I’ve seen many people insisting that the camera owner gets the copyright on any photo taken with their camera. If you read the comments on various other news stories that have covered this, people say this so confidently. They’re almost certainly wrong. There may be some exceptional cases where that’s true, but for the most part it’s not true. The confusion here is between ownership of the photo itself and the copyright on the photo. This is an issue that confuses many people who don’t deal much with copyright law, but the photo and the copyright on the photo are two separate things.
Under US law (we’ll deal with elsewhere soon), you have to have made the creative contributions (the copyrightable aspects) to the image to have it qualify for any copyright protection (and then, it’s only the creative aspects that get the copyright). Thus, you could argue that if the photographer had set up the camera, framed the shot, and simply let the monkey click the shutter, perhaps there is some copyright there (though, even then it would likely be limited to some of the framing, and not much else). But David Slater has already admitted that the monkeys found a camera he had left out by accident and that he did not have anything to do with setting up the shot. He’s stated that the monkeys were playing with the shiny objects and when one pushed the shutter, the noise interested them and they kept it up. It would be difficult to argue he made any sort of creative contribution here to warrant copyright.
Can the monkeys get the copyright? No. As Justin Levine kindly pointed out, according to the rules published by the US Copyright Office:
503.03 Works not capable of supporting a copyright claim.
Claims to copyright in the following works cannot be registered in the Copyright Office:
503.03(a) Works-not originated by a human author.
In order to be entitled to copyright registration, a work must be the product of human authorship. Works produced by mechanical processes or random selection without any contribution by a human author are not registrable. Thus, a linoleum floor covering featuring a multicolored pebble design which was produced by a mechanical process in unrepeatable, random patterns, is not registrable. Similarly, a work owing its form to the forces of nature and lacking human authorship is not registrable; thus, for example, a piece of driftwood even if polished and mounted is not registrable
That seems pretty cut and dried. The works are not subject to copyright at all. That would make them public domain.
But that’s all under US law. Could there be international claims? Aurelia J. Schultz has the best review of the relevant international law that I’ve seen, and it, too, concludes that the photos are almost certainly public domain. There are two countries where the law may matter: Indonesia and the UK. Schultz first looks at Indonesian law:
Under Indonesian copyright law an author is ?a person or some persons.? Miss Monkey is ruled out right there I?m afraid.
Sorry, Monkey. UK law?
Since it?s a British company claiming copyright, any suit is likely to be brought in the UK. Indonesia is a member of Berne and TRIPs, so the photos should be treated the same as UK works under UK copyright law. Unfortunately for the monkey, The UK copyright law also defines author as ?the person.? Sorry monkey, it?s not you.
Monkey see, monkey do, but monkey don’t get no copyrights. Okay, but does David Slater and/or Caters News have any copyright interest in the photos under international law? Again, the answer is almost certainly no. Under Indonesian law, if anyone can claim the right to the image, it might be the Indonesian government:
There is a clause in Article 7 of the Indonesian copyright law that specifies if a work is designed by one person and worked out by another, then the one who designed the work gets the copyright. If the photographer had set up the shot and the monkey had just taken the photo, the photographer would likely have the copyright. But the photographer didn?t design anything here. He just left his camera. The monkey did all the designing in the photos, so this article shouldn?t apply.
Perhaps more useful here is Article 9, ?If a legal entity announces that a work has originated from it without mentioning a person as the author, then the legal entity shall be deemed to be the author, unless proven otherwise.? The monkey took the photos in an Indonesian national park. The Indonesian government presumably owns that park and is a legal entity. It would seem that if the Indonesian government claimed it was the copyright owner, then it would be. Except for that ?unless proven otherwise bit.? But this leads us to another question, does the park own the monkey?
If not having an author as defined under the copyright law is the same as having an unknown author, then Indonesia owns the copyright under Article 10A of the Indonesian copyright law.
Okay, but Caters said they represented Slater, not the Indonesian government. What about under UK law? There, too, it appears that the image is almost certainly public domain:
Under Section 153, the work only qualifies for copyright protection if it meets requirements in several different areas including the area of author. Section 154 outlines the requirements the author must meet in order for the work to receive copyright protection.
- Option one, a British citizen. Pretty sure the Indonesian monkey is not a British citizen.
- Option two, an individual domiciled or resident in the UK. Monkey lives in Indonesia.
- Option three, an individual domiciled or resident in another country to which the relevant provisions of this Part extend. This seems to include any countries to which the UK must extend national treatment with respect to copyright. Since Indonesia is a member of Berne and TRIPS, Indonesia would be one of these countries. It might seem like we need to know if the monkey is an individual, or if it can be domiciled or resident. But, that doesn?t matter because the first part of Section 154 says ?if the author was at the material time a qualifying person.? (emphasis added)
So it appears under UK law, the photos are in the public domain.
So, it’s looking like the image is in the public domain in both the UK and the US.
Of course, given Caters initial response to this whole thing: “Michael, regardless of the issue of who does and doesn’t own the copyright – it is 100% clear that the copyright owner is not yourself,” it suggests that Caters doesn’t wish to recognize a public domain or the value that it provides. I find this to be yet another depressing statement on the state of copyright law today, where people can’t even fathom the idea that such a photo might actually belong in the public domain, where it can be used legitimately to enrich the lives of everyone.
Filed Under: copyright, david slater, indonesia, monkeys, public domain, uk, us
Companies: caters news agency
Comments on “Can We Subpoena The Monkey? Why The Monkey Self-Portraits Are Likely In The Public Domain”
If someone else takes a picture with my camera, I do not ‘own’ the copy protection privileges just because I own the camera.
If he did not carry the cameras to the location, there would be no image. If he did not put a memory card in the camera, if he did not attach a lens, if he did not charge the batteries, there would be no image.
Like it or not, he did plenty of things that contributed to the end image.
What I think funny is that you are making such a cause out of a silly, rather rare circumstance. It’s like you are, once again, attempting to kill all of copyright based on a single extreme case.
Let me ask you a simple question: Did you get permission to use the image on your site? No? Are you sure of the copyright holder? You are not. Are all images copyright at the time of creation?
I would say that while there may be some margin merit to your arguments, it doesn’t make your use of the image any more correct.
Re: Re:
Since the ruling in Feist vs Rural Telephone, U.S. copyright does NOT grant protection on the basis of “sweat of the brow” but only for creative contribtuion. So merely carrying the camera and leaving it certainly does NOT grant one copyright.
Mike – has Caters responded since your last blog post?
“If he did not carry the cameras to the location, there would be no image. If he did not put a memory card in the camera, if he did not attach a lens, if he did not charge the batteries, there would be no image.”
Wow. By following your line of logic, we could go all the way back to the battery makers, the lens makers, the camera body makers….. When do we stop?
Mike, what is this ‘Public Domain’ and ‘Fair Use’ that you freetards use all the time to try to defend your pedo-terror-theivery? I’m a copyright lawyer and I’m pretty sure you just made those words up.
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All of those things you describe are not creative contributions, and therefore do not endow the doer of any copyright claim on the resultant images.
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Not really, you are playing bizarre absolutes. The camera man brings cameras to a location and prepares them for shooting, makes sure they are loaded, they are charged, have an appropriate lens on them, and they are ready to go (turned on).
It isn’t at all the same as a battery maker, is it?
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lol what? your entire post reads like a 5th graders comprehension of copyright.
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If the memory card maker hadn’t made that memory card, there would be no image. If the camera maker hadn’t created that camera, there would be no picture. If the battery maker didn’t create the battery, there would be no picture.
It’s not a matter of how ‘much’ he allegedly contributed to the taking of those pictures, it’s a matter of whether the law grants him copy protection privileges or not.
“attempting to kill all of copyright based on a single extreme case”
Obvious troll is not only obvious, but is getting boring now.
“Did you get permission to use the image on your site?”
Permission from whom? The monkey? Do you remotely understand what the words PUBLIC DOMAIN even mean?
“Are all images copyright at the time of creation?”
As Mike clearly demonstrated, the answer is a definite no.
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except that copyright has to do with CREATIVE aspects, are you just willfully ignoring that?
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Who do you think techdirt should ask for permission to use the photo? The monkey? The argument here is that under several countries copyright law the image (having been taken by a money not a person) is in the public domain because the monkey (for better or worse) is not considered a person/human.
What I think is funny is how photographers love copyright law when it works in their favor but bash anyone who points out when it does not.
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Those are all functional contributions and not the creative contribution required by copyright law.
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>>Are all images copyright at the time of creation?
No. Which is Mike’s point here. Learn something about these laws if you want to argue about them.
“If he did not carry the cameras to the location, there would be no image. If he did not put a memory card in the camera, if he did not attach a lens, if he did not charge the batteries, there would be no image.”
Ok, pop quiz time – let’s say that he did every single one of those things and then hands the camera to his friend to shoot the picture. Who owns the copyright on that picture? Him, or his friend?
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Except for the bit about, without a battery, there wouldn’t be an image.
He didn’t take the picture. It really isn’t that hard to see.
Some of us may think that for ease of use, giving him the copyright in this case wouldn’t be too far a stretch.
But then some of us think that a lot of copyright holders aren’t interested in anyone else’s ease of use.
Like Mike’s completely justified fair use of the photo’s in his article, a normal person would not ask him to take them down. A normal easy going person, even if they did genuinely have the exact letter of the law guaranteeing them copyright would not say words to the effect of, it doesn’t matter who holds copyright, because you don’t.
It’s a fun, interesting situation and while you are determined to say screw you, everyone has to pay for anything anyone chooses to lay claim to, you are a minority both here and in the real world full of normal people.
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If Al Gore hadn’t invented the Internet the photographer would have place to show his picture – ergo all pictures posted on the Internet are Copyright Al Gore.
Re: Re:
al gore did not invent the internet. Sir Tim Berners Lee did
Re: Re: Anonymous coward
You terrific fool–Tim Berners-Lee OM KBE created the World Wide Web, not the Internet.
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You should not insult fifth graders in that way.
I think that the “no copyright for animal authorship” argument would likely win the day if put to the test (as the Copyright Office seems to think).
However, here’s an article discussing the issue and showing how it’s really not well-established in U.S. law one way or the other. It seems no actual court cases have dealt with the issue as of the time this guy wrote the article (or he didn’t find them anyway).
http://www.danejohnsonlaw.com/images/danejohnson-statuteofanneimals.pdf
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If I went to the beach and forgot my camera, and grabbed my friend’s camera that they left in my car and took pictures, they’d still be my copyright, regardless of if it’s their batteries or lens. Same for the monkies. Doesn’t matter who brought the camera, the primates were still the ones snapping the shots. Forgetting your camera and having someone else take shots on it does not mean you contributed.
And the reason why this case has become important is because it showcases how copyright is outdated. When the first copyright laws were drawn up, no one ever imagined this could happen, so there was nothing included regarding it. Which is why we’re arguing. It would be nice if copyright could be revamped to deal with the modern world instead of being constantly patched and repatched to try to plug up the issues that have risen over the years.
If the images are public domain, why would permission be needed to use them? If, somehow, they do deserve a copyright, would it not be fair use to post them as the story was reporting on the pictures, making them newsworthy? If that’s the case, again, why is permission needed?
I’d think there’s every right to use the photos here.
Re: Re:
What a load of absolute toss …
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Like it or not, he did plenty of things that contributed to the end image.
But copyright law doesn’t recognize “contributed to”. If I lend you my camera and you take a picture, the copyright on that picture would be yours. Not mine. And not the maker of the camera or the batteries or the memory card or anyone else who may have “contributed to” but did not actually take the picture.
What I think funny is that you are making such a cause out of a silly, rather rare circumstance.
This particular case might be rare, but its worthy discussion because it highlights the broader problems caused by a lack of understanding of the true purpose of copyright.
It’s like you are, once again, attempting to kill all of copyright based on a single extreme case.
Hypberbole much?
Let me ask you a simple question: Did you get permission to use the image on your site?
It’s covered by fair use, so permission is not required.
Are you sure of the copyright holder?
You might want to read the article posted above these comments. It clearly answers your question. Hint: there is no copyright holder.
Are all images copyright at the time of creation?
No, as explained in the original post. Here’s a suggestion for you. If you want to argue against a position, it’s usually a good idea to demonstrate that you actually understand that position.
Re:
If he did not carry the cameras to the location, there would be no image. If he did not put a memory card in the camera, if he did not attach a lens, if he did not charge the batteries, there would be no image.
That argument would also give a copyright interest to the camera manufacturer, the airline that transported Mr Slater to Indonesia and the power company that supplied the electricity to charge the batteries.
What I think funny is that you are making such a cause out of a silly, rather rare circumstance. It’s like you are, once again, attempting to kill all of copyright based on a single extreme case.
No he’s just pointing out that in this (admittedly unusual case) there is no copyright. This obviously has no effect on the vast majority of situations.
Let me ask you a simple question: Did you get permission to use the image on your site?
If there is no copyright there is no need to ask permission. You don’t need to ask permission for everything. Did you ask permission to get out of bed this morning?
Are all images copyright at the time of creation?
NO – and that seems to be the point you have difficulty accepting.
I would say that while there may be some margin merit to your arguments, it doesn’t make your use of the image any more correct.
to paraphrase “you might be right – but I’ll just ignore it”.
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To expand on this note a bit:
Scientists and primate handlers often give primates paints and paper. The primates then paint pictures using those tools the handlers prepared and left around.
The copyrights of those paintings are no more owned by the handlers than this picture is of the photographer.
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“But-for causation” is not sufficient to own copyright in a work. If that were the case, Adam and Eve would own all copyrights anywhere.
“Are all images copyright at the time of creation?”
No. At least not under U.S. law. An image that does not include any original authorship under the law is not protected by copyright. There is a strong argument to be made that these images contain no original authorship under the law.
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Same for the monkies.
But what about lemurs? Or a hybrid between a lemur and a boy?
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It’s not the same, but it meets the only requirement you provided: “if he did not ___, there would be no image.”
That is not the basis for copyright ownership under the law.
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Simple example would be the choice of F-stop and timing. That would include deciding to choose “auto”. The monkey clearly did not set those parameters itself.
Brings up an interesting parallel question...
..who (if anyone) owns the copyright to the nearly ubiquitous surveillance footage shot automatically every day around the US and world?
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Oooh! But the handlers selection of colors, medium, etc. *maybe* could rise to the level of a creative contribution protected by copyright.
Sorry, I love these kinds of discussions.
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> Did you get permission to use the image on your site?
> Are you sure of the copyright holder?
> Are all images copyright at the time of creation?
What you are ignoring is that the way the image was used is almost certainly fair use. In that case, who the copyright owner is doesn’t matter. Whoever that owner may be (if any!) would have to sue for infringement, and then fair use would be raised as a defense.
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If Al Gore hadn’t invented the Internet, you would have no place to comment and so your comments wouldn’t exist. Al Gore should own the copy protections on your comments.
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I invite Mike to go broke trying to prove it. It’s a magic techdirt moment, he can either put up or shut up.
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If you think any court is going to hold that “deciding to choose auto” demonstrates sufficient original authorship to warrant copyright protection…well, I think you don’t know much about copyright law.
But I could have told you that much based on your original comment.
Copy. Stop.
We stop at Planet Earth, originator (more or less) of the materials from which the camera, human, monkey, and background flora and fauna were produced. There may be some ownership issue given the Sun’s obvious involvement, but clear Planet Earth has the rights here.
So, given the logic in question–the copyright is owned by Planet Earth. So, can we all agree that copyright owned by Planet Earth and ‘public domain’ are the same thing, or must we argue about those as well?
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The primate copyright IP lobbyists are certainly going to respond to Mike, if by nothing else than flinging their poo at him.
Also, anything that I see that has “unknown author” I will claim to be done by monkeys, and declare it public domain.
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Your a copyright lawyer and you’ve never heard of “Public Domain” or “Fair Use”?
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No reason to do that unless he gets sued first. I don’t think that’s likely to happen in this case (but stranger things have happened).
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Is not given a camera to some monkeys creative?, selecting and editing pictures that they took creative?
Whats the difference between a monkey and a camera self-timer. Would he beable to claim copyright to pictures where he set up a camera self-timer and then threw it in the air at the appropriate time? After selecting and editing the pictures would he not own the copyright?
Brings up an interesting parallel question...
Ooooh! It’s owned by whomever does creative things on the video!
;-P
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whoosh!
Brings up an interesting parallel question...
Actually, you might be right.
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Touche
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You’re on the interwebz and you’ve never heard of sarcasm?
Commentards?
Well, I’m convinced. It’s obvious Al Gore owns the copyright to all comments on the internet. Man, I hope he’s prepped for several metric shit-tons of lawsuits…
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“Is not given a camera to some monkeys creative?”
The photog said it was an accident. He didn’t give it to them. So, in this case, no.
“selecting and editing pictures that they took creative?”
Maybe, but here the same selection is not copied. In other words, if he chose 15 pics as the best and arranged them in a certain order, he might have a copyright on that compilation. But Techdirt only used one or two, so it didn’t copy that same selection/arrangement/coordination.
As far as editing the single image, *maybe* theirs enough original creativity going into that process to warrant copyright protection.
That brings us to fair use…
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So what if the photographers assistant brings cameras to a location and prepares them for shooting, makes sure they are loaded, they are charged, have an appropriate lens on them, and they are ready to go (turned on)? By your logic the photographers assistant would have a Copyright claim on any photos the photographer took.
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Not really, you are playing bizarre absolutes.
Actually following arguments to their logical conclusion is often necessary to reveal their innate contradictions. Mathematicians call this “reducio ad absurdum” and it is one of the most powerful tools of mathematical proof. Without it we would likely still be in the dark ages – if not the stone age.
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I have.. but I’m slow.
um, here...
nobody loves ya, monkey boy!
please someone get me a banana.
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thank god someone said what i was trying to articulate, just because you have the law behind you to demand money for something, how about you not be a greedy pig and just let it go?
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you are correct I apologize to all the fifth graders i offended in comparing your intelligence to this AC
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having a camera on and with you is not doing something.
You’re misconstruing the general concept of publicity rights, which also don’t exist.
Do you own a location? you came there, you brought your air, chose your clothes. Oh right, the answer is no.
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i’m sorry adam, i should have put that comment in sarc tags, but i did get an awesome reaction 🙂
Brings up an interesting parallel question...
from now on i will attemt artsy poses in front of security cameras so that i can make a copyright claim on it
Here we see how the Planet of the Apes started. The monkeys rebelled in a non-copyrighted fueled rage!
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To be fair, I don’t think anyone has demanded any money from TechDirt.
At first, anyway, they just asked relatively politely to take the image down, although their second response was a bit testier.
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You’re on the interwebz and you never heard of cluelessness?
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Regarding your simple question… Mike did not ever and will never have to seek permission for using this image when discussing the actual image as a newsworthy item. Fair use is in effect when discussing the ramifications of the image and it”s copyright status in a news or scholarly environment.
Copy. Stop.
Clearly the supernova that spawned the solar system and therefore planet Earth deserves some credit. But then we go back farther to the Big Bang, clearly the most appropriate entity to hold all copyrights lasting forever minus a day.
Brings up an interesting parallel question...
..who (if anyone) owns the copyright to the nearly ubiquitous surveillance footage shot automatically every day around the US and world?
This is a valid question. I am pretty sure I have seen copyright claims on video surveillance. The Lindsey Lohan jewelry store shoplifting thing comes to mind.
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That’s a false dilemma. Mike can do what he wants, whether it’s put up or shut up or anything else. He’s not obligated to you at in any way.
Copy. Stop.
Well, yeah. But then it just starts to get silly.
um, here...
So lift your head up high (and blow your brains out)?
Copy. Stop.
How about taking it in the opposite direction? There is no such thing as an “image” – that is a subjective construct of my brain interpreting light waves as collected by the rods and cones in my eyes. Every time you look at something, your brain creates a transformative work. And thus the only copyrights anyone owns on anything are on the images inside their own mind. Anything externalized becomes public domain.
;D
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Making the argument of charging the batteries has nothing to do with the output image. Why don’t we just say that if the science of optics wasn’t known then there would be no photo.
Also, the analysis of a rare circumstance is often very valuable to debate and to learning in general thus leading to original thought (or orignal creations).
Copyright
It seems with the “nature” based items that the tenet appears to be: you can’t copyright something that you can’t reproduce.
You can’t get a monkey to take the same picture again, can you?
monkey
Won’t someone please think of the monkeys?
It seems like in the international copyright law analysis, the important point should be whether the other two countries involved have the same standards as the US as to what elements of a photograph are copyrightable–it certainly seems like other countries could conceivably grant a copyright to the photographer under these circumstances and you don’t really talk about this issue (but instead assume the monkey is the “author”).
Copyright Office rules
The Copyright Office rule you quote states what the Office may register and says nothing about whether an underlying original work of authorship exists.
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I invite Mike to go broke trying to prove it.
Typical bully response.
“It doesn’t matter if you’re right or not. We have more money and lawyers than you, so unless you do what we say, we’ll bankrupt you.”
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The friends.. But this brings up what I think is an interesting question.
If you then upload that photo to a social networking or photo sharing site that in their TOS claims ownership of the copyright – could it possibly be a legal claim as it was not yours to give away? These sites (and the uploading user?)could then be openning themselves to some serious legal disputes if they choose to use one of these photos for publicity?
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“If he did not carry the cameras to the location, there would be no image. If he did not put a memory card in the camera, if he did not attach a lens, if he did not charge the batteries, there would be no image.”
If the canvas maker did not make the canvas, ther would be no painting. Does the canvas maker get copyright’s to a painters work? The answer is no. The images are in the Public Domain and are covered by fair use, no permissions needed. Besides, he was not infringing upon nor was he profiting from the publishing a news article featuring the pics. Caters was out of line.
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Go broke doing what?
Even if there were a copyright on the pictures (and there’s not), Mike’s use is fair. He isn’t going to “go broke” unless sending the words “LOL! No.” back to Caters is somehow prohibitively expensive now.
Copy. Stop.
Actually, that is the definition of an image! Copyright applies to photos, drawings, etc, not the images they create.
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How well could you turn on a DSLR that had no battery?
Copy. Stop.
Well, since a supernova is a death event, it would be whoever is the heir of the former star’s estate, not the actual stellar corpse, who would have ownership.
monkey
We did. They’re typing up the legal precedents as we speak.
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It happens some times.
Of course, given Caters initial response to this whole thing: “Michael, regardless of the issue of who does and doesn’t own the copyright – it is 100% clear that the copyright owner is not yourself,” it suggests that Caters doesn’t wish to recognize a public domain or the value that it provides.
I think you give them too much credit. The more likely explanation is that they simply don’t know what “public domain” means. They probably just assume (like most people today) that EVERYTHING is copyrighted by someone.
Copyright Office rules
True, but they generally base their registration requirements on what they believe is protectable by copyright, no?
computer generated works analogy
[cross posting from 1709] I?m not a lawyer so what do I know, but ? I noted in 2003 in my Hands off MY Avatar paper (http://www.ren-reynolds.com/downloads/HandsOffMYavatar.htm) that the argument that virtual objects have some special legal status in virtual of, and only of, the notion that they are created by an Avatar is bogus. This stems from Express Newspapers plc v Liverpool Daily Post & Echo plc [1985] 1 WLR 1089; where the argument was that copyright did not subsist because the author of pools codes was a matching not a human thus fell out side the category of Author as this necessary entailed human.
Now Whitford J defined the role of the computer as instrumental, saying ?The computer was no more than a tool? and rejected the defence argument stating ?it would be to suggest that, if you write your work with a pen, it is the pen which is the author of the work rather than the person who drives the pen.? In the ruling the author of the work was adjudged to be the programmer ? but under work for hire blar blar.
There is a colourable augment that the circumstance set up by the photographer is sufficient to pass the notional instrument test established in the above case.
The smiling monkey photo was an AWESOME photo.
The camera company should use it in a commercial… “If a button-mashing monkey can take a photo this good with our camera, you should too!”
monkey
So far we’ve gotten a piece of what appears to be “Love’s Labour’s Won”.
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Even if there were a copyright on the pictures (and there’s not), Mike’s use is fair. He isn’t going to “go broke” unless sending the words “LOL! No.” back to Caters is somehow prohibitively expensive now.
Sadly, if someone brings a lawsuit against you for copyright infringement, even if the lawsuit is totally baseless, you can’t just write back with “LOL no”. You’re going to have to provide SOME sort of legal defense and file some documents with the court, and chances are you’re going to want a lawyer’s help with that. And that’s going to cost money.
This is why so many lawsuits settle. Sometimes winning is more expensive than settling.
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If… If… If… Like it or not, he did plenty of things that contributed to the end image.
Yes, that’s true. Unfortunately, none of those things are relevant to copyright.
If they were, the equipment guy that carries the photog’s things and helps setup sessions would have at least a partial claim toward the copyright on millions of photos.
What I think funny is that you are making such a cause out of a silly, rather rare circumstance. It’s like you are, once again, attempting to kill all of copyright based on a single extreme case.
Yes, because by discussing this particular case, he’s obviously making a case for the abolishment of all copyright.
Wait, what?
Let me ask you a simple question: Did you get permission to use the image on your site?
Yes, because the public is the copyright holder and he is part of the public.
Are you sure of the copyright holder?
Yes, as he’s repeatedly stated, the law is fairly clear. Non-humans cannot hold a copyright, therefore the photo is in the public domain.
You are not.
Yes, he is.
Are all images copyright at the time of creation?
All images created by a human being, but not images created by non-humans.
I would say that while there may be some margin merit to your arguments, it doesn’t make your use of the image any more correct.
I would say that his argument, including the bit about fair use which makes any copyright irrelevant, is meritable indeed, making his use of the image entirely correct.
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Not really, you are playing bizarre absolutes. The camera man brings cameras to a location and prepares them for shooting, makes sure they are loaded, they are charged, have an appropriate lens on them, and they are ready to go (turned on).
It isn’t at all the same as a battery maker, is it?
No, that sounds like the equipment guy to me. You know, the one who follows the photographer around with the extra equipment and preps the cameras?
By your logic, the equipment guy would get at least a partial copyright on photos taken by the actual photographer.
computer generated works analogy
There might be an argument that the monkey was an “instrument” in this case – except that the photographer is already on record saying that it was an accident.I can only see your argument applying if the photographer had intended to get the monkeys to take photos.
Re:
“Like it or not, he did plenty of things that contributed to the end image.”
Actually if you have ever experienced monkeys and things left laying about the answer to that is no he did nothing substantive to add the monkeys.
TOOL
So are you going to tell National Geographic that critter cam pics are public domain?
Have to say your a fucking tool and it’s douches like you that are looking for grey areas and screwing up the photo business.
Re:
Assumptions aside, you keep ignoring the fact that the owner of the camera was quite clear about having no involvement in the creative direction or intent to take the pictures. He stated unequivocally that the pictures were an accident initiated by the monkeys.
So, looking back through the analyses I can see no possible wording in the laws of any of the possibly applicable countries where this would make him the “author”.
Re:
Let me ask you a simple question: Did you get permission to use the image on your site?
If there is no copyright there is no need to ask permission. You don’t need to ask permission for everything. Did you ask permission to get out of bed this morning?
Nope…and now his mom is pissed.
TOOL
And its individuals like you that react with vitriol after clearly not having read or understood a single thing discussed in the blog post.
Regardless critter cam pics are not the same–they are set up specifically by a human and set to trigger based on conditions specified (or configured by a human). Critter cams have intent behind them (but even so, may not be covered by copyright). The owner of the camera explicitly stated the monkey pictures were an accident.
And finally, Mr. Pot, you might want to consider that you are doing the same thing you accuse the blog author of: looking for grey areas. By implying that copyright should cover this and critter cams you yourself are looking for grey areas to extend copyright.
If you actually wish to educate yourself, I would invite you to read the part in the blog post about what is NOT covered by copyright–this is not a grey area it is the actual wording of the law.
Copy. Stop.
Well, since a supernova is a death event, it would be whoever is the heir of the former star’s estate, not the actual stellar corpse, who would have ownership.
Heh, only if it happened the life of the former star’s life plus 75 years. Or under US law, life plus 95 years.
Something that happened 4.5 billion years ago probably exceeds the time period established by statue.
TOOL
Heh. I can’t tell if you’re serious, and your title is supposed to mean Hater of This Retarded Blog, or you’re being ironic and your title is supposed to mean Retarded Hater of This Blog
Damn those ambiguous adjectives!
Re:
If he did not carry the cameras to the location, there would be no image. If he did not put a memory card in the camera, if he did not attach a lens, if he did not charge the batteries, there would be no image.
If a butterfly did not flap its wings in China, his plane would have crashed, and there would be no image. Clearly, the picture is the property of the butterflies.
Let me ask you a simple question: Did you get permission to use the image on your site? No? Are you sure of the copyright holder? You are not. Are all images copyright at the time of creation?
None of this makes his use of the image unlawful, of course. You only need to ask permission if it’s not fair use, and you’re infringing on one of the specific 106 rights. In certain cases (e.g. statutory royalties), you don’t have to ask permission at all.
More to the point: Are you the copyright holder? No? Then you have no right to ask anyone to take it down.
it doesn’t make your use of the image any more correct.
That’s true. His use would be entirely correct even if Slater did hold the copyright.
Uses like this are why copyright law exists in the first place.
"almost certainly"
HAHAH,,
Mike has created a new legal construct of the burden of proof.
We now have:
Balance of probabilities
proponderance of the evidence
beyond resonable doubt
and now (wait for it)………….. ‘da da dah’
ALMOST CERTANLY
In order to be entitled to copyright registration, a work must be the product of human authorship
Did the monday make, buy or other acquire the camera, Mike you stated it yourself, that these photos are not the ‘product’ of the money either, he was just playing with a shiny thing that made noises..
Therefore he was not engaging in the product of a ‘work’.
The only person who was engaged with the work is the person who by good luck or whatever left his camera there.
And the company that pays him for the works he creates, and yes the photographer can hold ‘ownership’ of the image, but that does not mean he automatically owns the copyright of that image, owernship of the image and of the copyright for that image are two seperate entities.
Mike what justification do you have for making the claim that you are ‘almost sure’ it is in the public domain ???
"almost certainly"
Heh, so wait, copyright applies to strokes of good luck – and is also granted to camera manufacturers?
Mike what justification do you have for making the claim that you are ‘almost sure’ it is in the public domain ???
Maybe the detailed analysis quoted in the post?
"almost certainly"
Actually, scratch that, it’s not a particularly detailed analysis, more a cursory one – but it’s still more than you’ve provided
Publicity
None of this copyright foment is gonna matter once that monkey starts suing people over publicity rights.
"almost certainly"
HAHAH,,
Mike has created a new legal construct of the burden of proof.
We now have:
Balance of probabilities
proponderance of the evidence
beyond resonable doubt
and now (wait for it)………….. ‘da da dah’
ALMOST CERTANLY
In order to be entitled to copyright registration, a work must be the product of human authorship
Did the monday make, buy or other acquire the camera, Mike you stated it yourself, that these photos are not the ‘product’ of the money either, he was just playing with a shiny thing that made noises..
Therefore he was not engaging in the product of a ‘work’.
The only person who was engaged with the work is the person who by good luck or whatever left his camera there.
And the company that pays him for the works he creates, and yes the photographer can hold ‘ownership’ of the image, but that does not mean he automatically owns the copyright of that image, owernship of the image and of the copyright for that image are two seperate entities.
Mike what justification do you have for making the claim that you are ‘almost sure’ it is in the public domain ???
Re:
By your logic, you could surmise that the store where he bought the camera as well as the manufacturers and distributors of the camera could all claim equal copyright. After all, without them, the man would not have had the camera in the first place.
Re:
It’s a wonderful self protrait of you darryl, I would’ve thought you’d appreciate Mike’s fighting a false claim on copyright to your work.
Just Wait Till PETA Hears Of This ...
Do you think they?ll demand that ?animal rights? include the ?right to intellectual property??
Re:
Hulser, if I take a camera, set the exposure, the timer, the depth of field, the focus, and all of that, put the camera on a tripod, point it at the subject, and then give you a remote control to trigger the shutter, who really took the picture?
"almost certainly"
Did you just not read the article at all? Please go back and read, since the ‘justification’ is the entire point of the article.
"almost certainly"
The monkey used the photographer’s camera without his knowledge or consent. Basically, he found a camera and took some pictures with it.
Suppose I am walking along the beach and I see a camera on a towel. I pick it up and snap some photos, one of which is this amazing shot of a shark leaping into the air and catching a pelican in its teeth. It’s a great shot.
Since the camera belonged to some guy who was swimming (and silly enough to leave the equipment unguarded) does he get the copyright on a work that he did not do? If so, could to reference the law where that is stated?
"almost certainly"
Duplicate posts happen from time to time – but rarely with a ten-minute gap and a new IP address. What the hell, darryl?
Re:
I’d trade poo flinging monkeys for copyright maximalists any day. Even poo flinging monkeys that’ve been eating Taco Bell cuisine for a week.
monkey
So far we’ve gotten a piece of what appears to be “Love’s Labour’s Won”.
To be fair, they were working on Hamlet.
"almost certainly"
This is odd.
"almost certainly"
but rarely with a ten-minute gap and a new IP address. What the hell, darryl?
It was his other brother, darryl. Obviously.
Re:
What if you took a brand new digital camera out of the box, popped in the card and batteries, and left it on the default “auto” setting (thus having changed NONE of the settings yourself)? Since the settings were algorithmically determined by the camera itself, would the copyright go to the company that patented the camera? Or what if it was an old “point-and-shoot” that had a fixed exposure, f/stop, and focus? Would the copyright go to the Chinese laborer who setup the camera?
Sorry, the settings only contribute to certain facets of a photo, but have no barring on the ownership. It’s all about who framed the picture and triggered the shutter. (Or at least the shutter, but that might be debatable) It’s that person’s choice of subject and framing that primary defines the “artistic expression” of a photograph. Think of it this way, what if you setup an easel, canvas, pallet, paints and brushes? Event though your personal choice in the type of brushes, paints, and colors have an impact on the painting, the copyright still goes to whoever applies the paint.
So, in your example, you would own the picture because YOU framed the shot and set the timer to activate the shutter. Your choice of settings, regardless of how they effect the final picture, is entirely moot.
In the case of the monkey photos, since it appears it was the monkey that framed the shot (however clumsily it may have been) and took the picture, the monkey would technically own it. However, since it seems that a monkey cannot claim copyright ownership, then it belongs to NO ONE by default!
Re:
don’t forget if the Indonesian government had not preserved the area as a park then it would likely be a farm and the species pictured would likely be extinct
Re:
“Would he beable to claim copyright to pictures where he set up a camera self-timer and then threw it in the air at the appropriate time?”
“a work must be the product of human authorship. Works produced by mechanical processes or random selection without any contribution by a human author are not registrable”
seems just like most law its somewhat ambiguous and contradictory i would interpret it to mean that throwing a camera in the air with a self timer would not be copy right-able but it does seem to indicate if a human author contributes to the mechanical or random procees then it is copyrightable. really it makes me just want to throw the whole of copyright out the window
Righthaven Monkeys
By the end of next week, Righthaven will be suing everyone and claiming that the monkeys signed the copyright over to them.
Re:
^^^^^ THIS for Most Awesomeness comment of the Year!
"almost certainly"
This is odd
Well in defence of darryl, he is at least using his own name, as well as being consistently odd!
What would be odd is if his oddness did not happen.
Brings up an interesting parallel question...
Presumably, if I understand correctly, the person who set up these shots to run automatically?
Re:
Meh… use Poe’s Law as your defense for missing the sarcasm.
http://tvtropes.org/pmwiki/pmwiki.php/Main/ptitlehkm94ato
That’ll stand up in a court of public opinion much better than Caters’ claim.
Re:
Actually, this is a bad case for outdated copyright laws, as the laws clearly works as intended (the photographs belongs in the PD).
It is however a perfect case of people not understanding how the copyright laws works, and think that because you own the picture you automatically own the copyright.
And the comment you answered was also a perfect example of someone not understanding that.
My mind could be melting...
Before anyone bites my head off, I’m just trying to get this clear in my head:
I understand from the main blogs on this monkey see, do, sue thing that the monkey (which is not a person, almost certainly a minor, etc, etc)has no rights of ownership or copyright?
If this is the case does the chap that owns the camera now own the image?
If he owns the image can he apply for a copyright on that image?
Again, I’m only wanting to clarify this in my own head before I reply with something REALLY stupid… or maybe I’m too late (re-read above)
Re:
Then the person who used the remote TOOK the picture, but the person who set up the shot (that is, did the actually creative portions of the photo) owns the copyright.
That is however irrelevant in this case, since the owner of the camera explicitly said that he had nothing to do with setting up the shoot whatsoever.
Had it been a human who accidentally took the pictures the way the monkey did (i.e. a toddler playing with a camera), then that human could potentially argue ownership of the copyright.
My mind could be melting...
Owning a picture does not equal owning the copyright for said picture.
If I were to print out this picture, then I would own that printout (overlooking the fact that I can’t find the cable to the printer of course ;-)), but not the copyright.
Re:
Logistics are not creative contributions.
My mind could be melting...
I get that bit, but if you own the picture can you apply for copyright on it?
Re:
I am a photographer and I love that copyright clearly does not apply to these photos at all. I think it’s ridiculous that someone is trying to claim it does.
TOOL
You’re right, and here’s a list of reasons why.
My mind could be melting...
I understand from the main blogs on this monkey see, do, sue thing that the monkey (which is not a person, almost certainly a minor, etc, etc)has no rights of ownership or copyright?
Correct. Only humans can hold copyright over creative works in current copyright law both US and international.
If this is the case does the chap that owns the camera now own the image?
The chap who owns the camera owns a physical (digital) copy of the image. That does not make it “his” image, it means he has a copy of it… just like if you own a magazine, you own a copy of a bunch of images, but you don’t own those images.
If he owns the image can he apply for a copyright on that image?
If you think this one through I’m pretty sure you’ll understand the answer. Of course not. Just because you walk down the street and pick up the newspaper does not mean you can clip out the photos and apply for a registered copyright on the images in the newspaper. Even if you say, gave an elephant a canvas and paintbrush, you can not apply for copyright over the final work because you didn’t paint it.
Re: My mind could be melting...
Thanks! The elephant reference sums up the point about painting better than I did.
Anonymous Coward
If he did not carry the cameras to the location, there would be no image. If he did not put a memory card in the camera, if he did not attach a lens, if he did not charge the batteries, there would be no image.
– None of that is “creative” and that’s they copyrightable part.
Let me ask you a simple question: Did you get permission to use the image on your site? No? Are you sure of the copyright holder? You are not. Are all images copyright at the time of creation?
– Well if according to US copyright law only people could have copyright then no, not all images ave copyright at the time of creation. *Hint read the article before asking questions.
I would say that while there may be some margin merit to your arguments, it doesn’t make your use of the image any more correct.
– The image was used in conjunction with a “news story” so the use of the image falls under fair use. So his use was “correct”.
"almost certainly"
Well, you never know what will happen when you give a monkey an internet connection.
Re:
Chris, the copyright holder can in good faith file a lawsuit, claiming copyright violation. Fair use is essentially an affirmative defence, one where you first have to admit to using the image, and then secondly claiming that your use was “fair” under the 4 prong test to figure it out.
What Mike is saying here isn’t that his use is fair because of general fair use rules in the US, bur rather that he feels there is no copyright on the image. That would be something that almost certainly would end up in a prolonged court case, because Mike would have to show why there is no copyright, on the basis of the laws of 3 different countries. I am not even entirely sure that he could do it in the US courts alone.
So it’s really this question: If these guys push the issue, is Mike willing to put his money on the table for his beliefs, or will he just take down the image?
Re:
I’m no lawyer but it seems to me that it would go like this:
1) File for summary judgement on the grounds that they are not actually the copyright holder
2) If that is rejected, file for summary judgement on the grounds that it is obvious fair use
3) If that is rejected, they might face a tough decision.
I can see (1) being rejected. I can’t see (2) being rejected though.
Re:
Marcus,
1) You just spent a pile of money.
2) You just spent another pile of money
3) You wonder why you just spent two piles of money for nothing.
In your list, I can see 1 rejected easily. If the copyright is claimed in the UK, example, the US courts would have to respect that claim until it is proven to be false. That claim would have to be made in the jurisidiction that the copyright is claimed in, because it’s subject to the copyright laws of that country. So it is unlikely the judge will just toss it out, because it isn’t a fact of law yet.
2 is slightly better, but still is a bit of a chase. Mike has made it clear repeatedly that he isn’t a journalist, just a guy running a blog, and that blog is run for profit. So journalistic fair use likely wouldn’t apply, so you would have to ask which aspect of fair use would apply here.
By the time you get to 3, you have already spent probably 40 – 50 hours of lawyer time, letters, filings, appearances, pleadings, etc. It’s already a piss pot full of money to end up pretty much where you started.
I don’t think the other side will press the issue. But if they do, Mike will have some serious thinking to do before starting down the road.
Re:
Obviously it’s going to cost some money, but I think you are overstating it a little – a full court battle would cost a lot, but a few summary judgement filings can actually be done on a reasonable budget (especially when you have pro-free-speech lawyers willing to help you out – which I suspect Techdirt does)
But more importantly, I’m not sure why you are celebrating this, other than childishness. One of the main points made against IP law is that it can be used as a form of extortion since fighting is so expensive. You seem to be admitting that this is a major problem with the law – you are just reveling in it because it is happening to someone you don’t like.
Re:
“What Mike is saying here isn’t that his use is fair because of general fair use rules in the US, bur rather that he feels there is no copyright on the image.”
He’s saying both, actually.
Also, it would not be Mike’s burden to show that there is no copyright ownership. Rather, it would be the plaintiff’s burden to show ownership of a valid copyright (at least that’s how it works in the U.S., where I assume any suit would be filed).
I’m not sure if anybody could actually file a suit in good faith here, given the facts indicating that there is likely no copyright in the original image.
Re:
“If the copyright is claimed in the UK, example, the US courts would have to respect that claim until it is proven to be false. That claim would have to be made in the jurisidiction that the copyright is claimed in, because it’s subject to the copyright laws of that country. So it is unlikely the judge will just toss it out, because it isn’t a fact of law yet.”
I”m sorry, but this looks like nonsense to me. It is a plaintiff’s initial burden to show ownership of a valid copyright. Why would Mike have to prove no copyright? Also, what is a “fact of law?”
"almost certainly"
You might want to educate yourself on the concept of “authorship” before talking down to people.
My mind could be melting...
No (or at least not necessarily).
10 different people can own copies of the picture, but they don’t all own the copyright
Re:
he can either put up or shut up.
Keep dreaming, skintube.
Re:
Doing “plenty of things that contributed to the end image” isn’t the law, nor should it be, for establishing copyright. Should every photographer’s assistant hold copyright for images the photographer took simply because he set up the camera for her? Should a production assistant hold the right for a film because he did some work to make sure things went well on set?
The arguments do make the use of the image more correct if it is established that the image is in the public domain.
If these guys push the issue, is Mike willing to put his money on the table for his beliefs, or will he just take down the image?
And your point is? Regardless, the bigger issue here is copyright is outdated, out of control, it has been used to suppress freedom of speech and technological advancement and it needs to be rewriten from scratch. See? That’s a point. Yours is just monkey feces from your IP asshat stringmaster.
Re:
I feel this is going direction http://xkcd.com/898/
My mind could be melting...
On point two, if no one can claim copyright of the original, which the monkey can’t, surely the owner of the original image, in this case the chap who owns the camera, has a claim to it, if he chooses to pursue it? Not that he has chosen to yet?
Again, not arguing, just trying to make it clear in my head.
Thanks for the replies so far btw
My mind could be melting...
You cannot claim copyright on an image you merely own. The copyright owner is the only the creator, or perhaps another in a work for hire case. Simply because you own something that no one can legally claim copyright in doesn’t give you the right to claim it. You have to be the creator of the work, this is the authorship requirement.
My mind could be melting...
For the sake of comparison, imagine someone finds a century-old painting that had never been seen before in their attic. There is no living author, and even if there was the copyright would be expired, so it is a public domain work. Even though it’s essentially “new” to the world since nobody has seen it, and even though the guy who owns the house is the owner of the original, there is no new copyright granted.
Copyright belongs exclusively to the creator of a work, or to someone to whom they legally transfer it. Copyright never stems from simply possessing an original. Always authorship, never ownership.
My mind could be melting...
On point two, if no one can claim copyright of the original, which the monkey can’t, surely the owner of the original image, in this case the chap who owns the camera, has a claim to it, if he chooses to pursue it?
Your point of confusion seems to be that you believe *someone* must hold the copyright, and if it’s not the monkeys, then Slater is the next logical person in line. You are starting from a mistaken assumption that there must be a copyright.
If the the “author” of the image cannot hold the copyright under law (as is the case here) then the works are public domain, and there is no copyright at all.
It’s not like “title” on a piece of land where someone has to hold it. Works in the public domain can be used by anyone.
My mind could be melting...
I finally got it!
Did anyone else hear the penny drop?
Thanks for re-solidifying my mind to those that were patient enough to stay with me.
Criminal behavior?
Section 506(c) of the Copyright Act states that putting a fraudulent copyright notice on an item or imports an item with such a notice is guilty of criminal copyright infringement.
Time to call your local Federal District Attorney?
Re: Criminal behavior?
Criminal behavior needs to have criminal intent. I don’t think Cater’s is attempting it. It would seem reasonable for Cater’s to attempt to maintain copyright over the work-for-hire (assuming that Slater’s work is work-for-hire).
This is a very lively and useful discussion about copyright in the US and UK. I have enjoyed most of the posts.
Cheers,
DW
I think everyone's missing something here...
As soon as I found out that the photog *is employed by Caters*, it became pretty clear to me that Caters is likely behaving they way they are *in an attempt to help preserve any copyright the photog might turn out to have*, whether at his explicit request or otherwise…
It is clear
That techdirt will have to pay the monkey then (or its agent). Does the number of bananas depend on the number of hits on this site?
All of this means nothing especially if Caters contacts a lawyer in Belgium (the most controversial country in the world when it comes to copyright). You can ask Google what the Belgium courts did to it. I lack knowledge about Belgium’s personal jurisdiction rules in internet cases…..but I know Techdirt can be found in the U.K.
US law: the copyright cannot be registered. does that mean it doesnt exist? or exists but cannot be registered? copyright is created upon creating the work right? need not be registered. is this also the international position? TRIPs?
since copyright is essentially a proprietary right in nature, can it then be said that upon creating said right, it was never capable of ownership by the maker. much like how we cannot today say the rocks and trees found in nature today are the property of ‘God’. by extension, that would mean that whoever claims this proprietary right first becomes its legit owner? in that case it would be the photographer?
You are indescribably stupid. Not every published item qualifies for copyright protection. Those that do not qualify default to the public domain–end of argument.
You cannot open the argument by dismissing the question of specific ownership. If no human being meets the legal criteria of creative contribution, the image cannot be copyrighted. In such a case, the work is legally in the public domain by design. It is a carefully-considered balance between the public good and the rights of the creator–not some sort of loophole imagined by paranoid corporate zombies.
Decidedly not. As comprehensively demonstrated in the article–which you have clearly failed to read–these particular works do not qualify for copyright protection. Had David Slater claimed to have shot them, the photos would have been eligible for copyright protection. Unfortunately for him (and Caters), the value of this set of images rests in its entirety upon having been created through non-human agency.
The decision to publish these photos is consistent with years of consideration by philosophical minds much more capable than yours. You don’t get to interpret law in a way that is expedient to your particular view on a particular case. By any legitimate-, consistent-, systematic measure, Tech Dirt’s interpretation is correct. It cannot be made “any more correct”–correctness, like pregnancy, is absolute: either you is or you ain’t.
Just as any monkey can press a shutter, any imbecile can form an opinion–existence is in no way equivalent to merit. The macaque’s photographs do not meet the requirements for copyright protection; and your abject failure to comprehend fundamental principles makes you incompetent to render a legitimate verdict.
If you’re going to exercise your right to an opinion–in public–you might at least try to make it valid.