Photographer David Slater Claims That Because He Thought Monkeys Might Take Pictures, Copyright Is His

from the is-this-some-new-copyright-theory? dept

It appears this monkey business isn’t over just yet. As you probably know already, we had a discussion recently about some monkey self-portraits, in which some monkeys in Indonesia happened upon a camera left by photographer David Slater. In the original article on the subject, Mr. Slater stated clearly that he believed the resulting photograph was due to an accident:

‘One of them must have accidentally knocked the camera and set it off because the sound caused a bit of a frenzy, said Slater, 46.

‘At first there was a lot of grimacing with their teeth showing because it was probably the first time they had ever seen a reflection. ‘They were quite mischievous jumping all over my equipment, and it looked like they were already posing for the camera when one hit the button.

‘The sound got his attention and he kept pressing it

‘At first it scared the rest of them away but they soon came back – it was amazing to watch.’

As we noted, it seems pretty clear that under copyright law in the US and the UK, the photograph is in the public domain. They were not created by a human. The creative inputs into the image were not made by a human. There is no copyright on those images. And yet, Slater apparently licensed them to Caters News Agency, who sent us a takedown request. We stand by our assertion that the images are in the public domain, and even if they’re not, our use is covered by fair use rules within copyright law.

The story has been getting wider and wider attention, and it has now been picked up by the Metro in the UK, who spoke with David Slater to get his take on things, and he stands by his belief that he holds the copyright, based on a rather unique interpretation of copyright law (and, by unique, we mean “wrong”):

‘Until I hear from the monkey?s lawyers, I will stick to the belief that I own the copyright,’ said Mr Slater yesterday.

He obtained the amazing photo when he left his camera around a group of primates on the Indonesian island of Sulawesi.

But he said, although he had left the equipment ‘unmanned’, the suggestion the incident was an accident was wrong.

He claimed he had engineered the shoot, adding: ‘I was the artist behind it.

‘It was my artistry and idea to leave them to play with the camera and it was all in my eyesight. I knew the monkeys were very likely to do this and I predicted it. I knew there was a chance of a photo being taken.’

It’s a nice thought and all, but I can find nothing in copyright law that suggests it is determined this way. If I leave out a stack of crayons for my son and he colors the walls, do I get the copyright on it? No. He does. Separately, Slater himself admitted earlier that it was an “accident,” so he’s now changing his story. As for the final sentence that it was his “idea,” that’s totally meaningless. Copyright is not on the idea. This is why we have the idea/expression dichotomy in copyright law. And, yes, both US and UK copyright law have the idea/expression dichotomy (applied slightly differently, but as far as I can tell that difference is meaningless here). Copyright only applies to the expression and not the idea. It makes no difference at all that he had the idea, or that he left the camera out hoping for the accident. It makes no difference that he predicted what would happen.

Hell, I predicted that David Slater would say that the copyright belonged to him. Based on David Slater’s reasoning, because I predicted it, the copyright on his statement now belongs to me. But, of course, that’s silly. The copyright in a photograph is specifically limited to the creative choices in the expression, not the idea — and the monkeys took the pictures here, meaning the expression was their own.

Separately, the Metro article claims that unnamed “experts” agree with Mr. Slater:

Copyright lawyers confirmed that setting up the pictures gave Mr Slater a lawful claim to the copyright.

And experts added the ?author? of any copyrighted work had to be a ?natural? person ? not, it seems, a monkey.

It’s kind of strange that they don’t name or quote these “experts,” but I believe the Metro either misrepresented the copyright issue at hand, or is misrepresenting the reply of the lawyers they spoke to. First off, it’s true that a photographer could potentially claim copyright on an image shot by someone else if they really were involved in “setting up the pictures,” but that means actually setting up what the photo is about: the framing, the composition, the angle, etc. Slater did not do that here. He did not do enough to qualify for a copyright under US or UK law. The “experts” are also correct that the author, for the purpose of copyright, needs to be a natural person and not a monkey… but this does not mean, as the article falsely implies, that when the true author is a monkey, the copyright defaults to the nearest human.

I’m sure that Mr. Slater is a nice guy and a wonderful photographer. I went through some other images on his site, and he’s very talented, and deservedly holds the copyright on many other photos. But on these images, he’s just wrong. He doesn’t hold the copyright. I doubt the monkeys will send their lawyers after him, but he should be careful about claiming he holds the copyright.

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Comments on “Photographer David Slater Claims That Because He Thought Monkeys Might Take Pictures, Copyright Is His”

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243 Comments
Chronno S. Trigger (profile) says:

Justification

This also does not justify the rather rude E-Mail you received when questioning their request for you to take down the pictures. Ignoring the copyright claim, you still had a fair use claim.

My cat knocked over my camera that was sitting on my end table and got a rather interesting picture of my lamp. I guess I own that copyright since I sat the camera in a location that I knew my cat knocks stuff off of (AKA: in the house).

Brendan (profile) says:

Re: Re:

So do I. That way a court will correct their flawed conclusions, and force them to pay costs for their idiotic claims.

Slaters best move is to stop persuing this issue. He should ignore anyone using his photos ?without permission” and just focusing on getting license fees from any agencies too paranoid to NOT pay somebody. Though I would caution him to structure these license deals carefully to avoid fraudulent claims.

FuzzyDuck says:

Re: Re: Re:3 Re:

US law may apply in the UK, but UK law certainly does not apply in the US.

This maybe unfair, hell it is unfair. Do thank Tony Blair’s labor government for signing that treaty with the Bush administration.

Point is TD doesn’t have to abide by UK law. Period.

I do hope UK citizens pressure their government enough to rescind the extradition treaty with the US. US laws really shouldn’t apply in the UK either.

Anonymous Coward says:

Re: Re: Re:2 Re:

Shackle

you need to be careful with number 2 in the UK there are no fair use rules.

1. TVShack was located in the UK.
2. The US claims US law apply in the UK and Richard O’Dwyer, of Sheffield Hallam University is facing extradition to the US for running a file-sharing site.

Anonymous Coward says:

Re: Re: Re:

Fair use might not apply because Mike has repeatedly stated he is not a journalists. This is a for profit blog, nothing more and nothing less. Fair use would be very marginal at best.

As for his “the photo is in the public domain”, he would have to prove that. As the copyright is claimed in the UK, he would likely have to go to court in the UK to prove it. The US courts can only respect the copyright from another jurisdiction.

Basically, Mike would have to prove it. He is likely to fail or run out of money trying.

Ninja (profile) says:

Re: Re: Re: Re:

He might not be a journalist. But it still applies as fair use. He wasn’t even talking about the pictures themselves but using them as support for his arguments over copyright. He could be using them as examples on how monkeys are damn smarter than ppl. And it would be fair use because you know why ppl come to this site? TO READ THE DAMN ARTICLES. The pictures are mere accessories.

And this is yet another example why we need copyright reform. Nothing is clear in any copyright laws as they are today.

Justin Levine (profile) says:

Re: Re: Re: Re:

Fair use might not apply because Mike has repeatedly stated he is not a journalists. This is a for profit blog, nothing more and nothing less. Fair use would be very marginal at best.

Every major news outlet is “for profit” – The NY Times, CNN, USA Today, ABC News, etc. So trying to distinguish this forum as a “for profit blog” is of little relevance in terms of a fair use analysis.

As for his “the photo is in the public domain” [argument], he would have to prove that.

He would only have to prove that AFTER somebody else made a preliminary showing through proof that they owned a valid copyright in the image. The mere physical possession of an image is not enough to overcome this initial evidentiary hurdle.

Anonymous Coward says:

Re: Re: Re:2 Re:

Justin, the only thing they would have to show is that they have a copyright on the image issued in the UK, and that is a simple as saying “my camera shot the image”. The burden of proof would be to show that they do not have copyright, which is a pretty high hurdle.

Justin Levine (profile) says:

Re: Re: Re:3 Re:

Justin, the only thing they would have to show is that they have a copyright on the image issued in the UK, and that is a simple as saying “my camera shot the image”. The burden of proof would be to show that they do not have copyright, which is a pretty high hurdle.

100% wrong.

If I steal your camera from out of your hands, run off and use it to shoot an Ensel Adams-quality photo, you can prosecute me for theft of the physical camera and recover the actual film/digital card containing the image I shot, but you would NOT own the copyright on the photo I created. You could assert ownership over the single physical copy of the photo I created inside your camera, but you could NOT assert ownership over the copyright to it.

To claim copyright privileges in the UK, you must claim “authorship”. The fact that your camera was involved does not make you the “author” of the photo that I took with it. So it is irrelevant that “your camera shot the image”.

Again, one must first prove the existence of a valid copyright before forcing the user of the work to rebut the proof with further evidence showing that it either fell in to the public domain or that the affirmative defense of fair use applies.

This is true both in the U.S. and the U.K. Your claims about the law in this instance are simply false and people who choose to believe you are simply deluding themselves based on their own ideological biases on how they wish the world would work.

Anonymous Coward says:

Re: Re: Re:4 Re:

Justin, I have to ask:

In your “steal the camera” example, you would be correct, because we are dealing with two valid and legal authors. Either one of them is capable of meeting the standards to hold copyright.

However, the monkey cannot. The conflict you describe is between two people who could hold the copyright, and the law favors he who pushed the button (and would have done all the composing of the image, setting the camera up, etc).

In the monkey case, almost all of the work was done by the photographer, and the money only triggered the shutter. Would you feel different if the photographer had set up an automated trigger under the monkey’s feet?

From the UK copyright service website http://www.copyrightservice.co.uk/copyright/p01_uk_copyright_law :

“The law gives the creators of literary, dramatic, musical, artistic works, sound recordings, broadcasts, films and typographical arrangement of published editions, rights to control the ways in which their material may be used.”

and

“For literary, dramatic, musical or artistic works
70 years from the end of the calendar year in which the last remaining author of the work dies.
If the author is unknown, copyright will last for 70 years from end of the calendar year in which the work was created, although if it is made available to the public during that time, (by publication, authorised performance, broadcast, exhibition, etc.), then the duration will be 70 years from the end of the year that the work was first made available.”

Why would they allow for an author to be “unknown”? Why would they make a clear difference between “creator” and “author”?

Oh, wait, perhaps the actual bar for determining who “created” the work is much lower than is being suggested on techdirt.

nasch (profile) says:

Re: Re: Re:5 Re:

In the monkey case, almost all of the work was done by the photographer, and the money only triggered the shutter.

He left a camera out. The monkeys did almost all the work.

Why would they allow for an author to be “unknown”?

The author isn’t unknown. The author is a monkey. Monkeys can’t hold a copyright, so the photos are not copyrighted. You realize it’s possible for something to exist with no copyright on it, right?

Justin Levine (profile) says:

Re: Re: Re:5 Re:

In the monkey case, almost all of the work was done by the photographer, and the money only triggered the shutter.

100% wrong. The only “work” done in this case was leaving a camera out so that a monkey could unexpectedly take it and make photographs with it.

Would you feel different if the photographer had set up an automated trigger under the monkey’s feet?

If the human photographer made deliberate artistic choices in terms of filters, lenses, f-stop, film stock (or digital equivalents), framing, etc., then yes. Simply having a force of nature or random event be the deliberately intended triggering device for the shutter would not divest the human from “authorship” in that scenario – but that isn’t the case in this instance, and you know as such.

We have a fundamental disagreement on what constitutes “authorship” here. You seem to be suggesting that because the human’s camera was used, the human must therefore be the “author” (which contradicts my “camera theft” scenario which you already conceded to). I hold (as does the actual law) that deliberate creative choices must be guided by human intent in order for there to be “authorship” under copyright law. There mere decision to be in proximity with monkeys with a camera is not enough of a creative choice to convey “authorship” to a human when monkeys are the ones making the “creative choices” in this instance.

If you create an abstract work of art by having a dog randomly track paint on to your canvas, you could claim copyright since you deliberately chose the color and texture of the paint for the process, the size of the canvas, the type of animal to make the tracks, etc. But that is very different than fixing your garage one day, seeing a dog spill over your can of paint and track it through your house floor and then trying to claim copyright on the random patterns. No copyright would be available in that instance since there is no human authorship. They key here is how the law could plausibly interpret the concept of ?authorship?.

It may be a silly distinction which differentiates these two examples, but then there are countless aspects of our current copyright laws which are entirely silly.

The fact that UK law makes reference to both “creators” and “unknown” authors is irrelevant, since it assumes that all such “creators” and “unknown” authors must be human. Would you not agree? If you don’t agree, then do we give copyright to a volcano whose lava flows create interesting rock formations?

Even if an image was created entirely through human processes without any deliberate human “creativity” to guide it, it may still be uncopyrighted – such as the instance of a fixed-mounted security camera recording 24/7 which happens to capture a dramatic event. (Unless of course you’d also like to lecture Suffolk University Law Professor Stephen M. McJohn at tell him that he’s wrong about copyright law too. You can read his scholarship on copyright which contains these conclusions here: http://books.google.com/books?id=Gq9VbEQnxaQC&lpg=PA20&pg=PA20#v=onepage&q&f=false )

So sorry, even though you have now conceded my point about the “stolen camera” scenario, you now try to deny the facts in this case now that you have lost on the law. But the way you now characterize the facts is equally wrong. The human in this instance had his camera stolen by monkeys who managed to take photos with it. He did not purposefully set up his camera with pre-set conditions on the assumption that monkeys would take it and trigger the shutter mechanism in order to create a humanly-guided picture.

You are still 100% wrong. You lost by arguing the law. You tries to change the subject by arguing the facts – and you’ve still lost. Now you will try to squirm out of this by changing the subject again no doubt (like pointing to the fact that copyright allows for “unknown” authors – even though it is clear that such “unknown” authors must still be human).

Anonymous Coward says:

Re: Re: Re:6 Re:

You said: “100% wrong. The only “work” done in this case was leaving a camera out so that a monkey could unexpectedly take it and make photographs with it.”

Me: Let’s see. Left it out. Lens cover off. Polarizing filter on. Camera turned on. Set in the correct mode. With memory card installed. Focused. Yup. The guy did absolutely nothing. By your own stated standards, he did more than enough.

You said: “The fact that UK law makes reference to both “creators” and “unknown” authors is irrelevant, since it assumes that all such “creators” and “unknown” authors must be human. Would you not agree? If you don’t agree, then do we give copyright to a volcano whose lava flows create interesting rock formations?”

Me: Can you show me where in the UK law is specifically saying that the creator must be the one operating the camera at the moment? Is James Cameron the creator of the movie, or does the copyright go to the guy running the camera?

Attempting to take natural phenomena and turn it into an example is pretty weak. That is a natural occurrence, not an artistic work. So your example sort of fails.

You said: “You are still 100% wrong. You lost by arguing the law. You tries to change the subject by arguing the facts – and you’ve still lost. Now you will try to squirm out of this by changing the subject again no doubt (like pointing to the fact that copyright allows for “unknown” authors – even though it is clear that such “unknown” authors must still be human).”

Me: Please point me to where the UK copyright law specifically says “human”. Please also point me to where it says that the person triggering the shutter is the only one who can claim copyright. By your definition, work for hire does not exist.

Anonymous Coward says:

Re: Re: Re:7 Re:

Can you show me where in the UK law is specifically saying that the creator must be the one operating the camera at the moment?

http://www.copyrightservice.co.uk/protect/p16_photography_copyright

Who owns the copyright on photographs?
Under law, it is the photographer who will own copyright on any photos he/she has taken, with the following exceptions:
If the photographer is an employee of the company the photos are taken for, or is an employee of a company instructed to take the photos, the photographer will be acting on behalf of his/her employer, and the company the photographer works for will own the copyright.
If there is an agreement that assigns copyright to another party.
In all other cases, the photographer will retain the copyright, if the photographer has been paid for his work, the payment will be for the photographer?s time and typically an allocated number of prints. The copyright to the photos will remain with the photographer, and therefore any reproduction without permission would be an infringement of copyright.
Examples:
If Bill Smith asks Peter Jones the photographer to photograph his wedding. Peter Jones will normally provide a single copy of the prints as part of the fee, but any additional prints Bill or his family and friend want must be ordered via Peter as he is the copyright owner and controls who can copy his work.
If Bill Smith engages the services of XYZ-Photos for the same job, and Peter is an employee of XYZ-Photo who instruct Peter to take the photos, XYZ-Photos will be the copyright owner and control how they are used.

Anonymous Coward says:

Re: Re: Re:8 Re:

I read that. It appears to suggest that rights can be assigned and it not be the actual photographer that gets the rights. That could be work for hire, or that could be blanket clause (all photographs shot during Indonesian Monkey visit).

So sorry, we aren’t any further ahead here.

Anonymous Coward says:

Re: Re: Re:10 Re:

The monkey perhaps not. But perhaps the Indonesian government signed a contract for photography in their nature reserve, giving the photographer “all rights for images taken”.

We are also still on the debate of how much work is required for the photographer to be the rights holder. Nobody has pointed to any UK cases on point that would put it in dispute so far, just a lot of conjecture and Mike’s self-saving ramblings on the subject.

Greevar (profile) says:

Re: Re: Re: Re:

“Fair use might not apply because Mike has repeatedly stated he is not a journalists.”

Being a journalist is not a prerequisite for fair use. Fair use applies to many things such as commentary, review, and parody for example. A journalist’s credentials are not needed to pass a fair use test. Nevertheless, that only applies if someone holds the copyright, which is not the case here.

“As for his ‘the photo is in the public domain'”, he would have to prove that.”

Bullshit. The burden is upon Slater to prove that he holds the copyright, which he obviously does not.

“As the copyright is claimed in the UK, he would likely have to go to court in the UK to prove it.”

False, UK law does not hold authority over a US citizen who did not perform the act in question within the jurisdiction of the UK. It’s a US site on US servers operated by a US citizen. The UK has no authority to pass judgement nor enforce it over him.

“Basically, Mike would have to prove it. He is likely to fail or run out of money trying.”

He has nothing to prove. He hasn’t claimed any rights to the images in question. Quite the contrary, he claims no rights and also that no one else does either. Slater is making the claim of rights holder, it is his job to prove he has a valid claim.

Anonymous Coward says:

Re: Re: Re:2 Re:

Rose, while fair use isn’t about journalism specifically, it is one of the very clear exception cases that allow use. It is one of the few ways (as has been discussed in other threads) that you could use an image on a commercial website without issue.

I was trying to figure out which of the four prongs Mike was trying to use to get there. I can’t figure it out. He isn’t a teacher, he isn’t a journalist, he is running a site for commercial gain (although many of the sponsors seems to have dropped off)… so which prong would you like the try?

nasch (profile) says:

Re: Re: Re:3 Re:

Well I’m not Rose obviously, but I would say

1. The purpose of the use is for commentary on a commercial site, could go either way IMO
2. The work in question is not even copyrightable in the US, and has very little if any (human) creativity
3. I don’t know how much of the work Mike posted
4. Is there any market at all for the work? It would seem to be very tiny if anything, and not affected negatively whatsoever by TechDirt’s use

It looks like a pretty strong, though probably unnecessary, fair use defense to me.

G Thompson (profile) says:

Re: Re: Re: Re:

What does being a journalist have to do with the defence of Fair use?

As for the copyright being claimed in the UK, you might be interested to know that this is wrong in the first place. The copyright can only be claimed in Indonesia.. Might want to check on the Berne Convention before you troll next time.

And as I have stated before, the only persons who can rightly claim copyright are the actual owners of the monkey (chattel owners) which in this case is the Indonesian Government (by agency). Until such time as they actually do lay claim to it the copyright is in limbo or quasi-public domain if you will

kichigai808 says:

Re: Re: Re:

To all of you making absurd conclusions that the copyright is questionable you are all wrong. I studied copyright law and in most cases the photo is owned by the photographer but not always. If he is an employee the employer owns the copyright unless specified otherwise. In this case the monkey did use the photographers equipment and the photographer has legal possession of camera and any media used he is by default the legal owner and has all rights to the photos.

Blanchimont says:

Re: Re: Re: Re:

kichigai, if really you studied journalism, perhaps you should claim back those fees…

1. The aspect of who owns the copyright between a journalist and his/her emplyer is stipulated in the terms of the employment contract between them. Otherwise the journalist would indeed retain the copyright…
2.There is a distinction between copyright and ownership, both a legal and logical one. Just because one owns something doesn’t automatically give one copyright, think of books, paintings…

And this from a construction worker using his common sense, not someone who studied journalism…

Karl (profile) says:

Re: Re: Re: Re:

If he is an employee the employer owns the copyright unless specified otherwise.

Unless the photographer (a) is a salaried employee (not e.g. an independent contractor), or (b) signs a deal explicitly stating this is a work for hire, then the photographer owns the copyright. He or she can also assign the copyright (but again, this must be explicit in the contract). Otherwise, the photographer holds the copyright on the photograph.

In this case the monkey did use the photographers equipment and the photographer has legal possession of camera and any media used he is by default the legal owner and has all rights to the photos.

The person who “has legal possession” of the equipment is not “by default the legal owner.” Absent a signed contract (or employment record) saying otherwise, the photographer is – without exception.

The monkey is the photographer, since Slater did not set up the scene, make decisions about lighting or framing, etc. – which are the only things “copyrightable” in a photograph. Since monkeys cannot hold copyright, this means that the photos can’t be copyrighted – they are now and forevermore in the public domain.

If you studied copyright law, I’d write the school and ask for your money back, since what they taught you is wrong.

arthur Smith says:

Re: Re: Re:2 Re:

Ok, so by that logic let’s pretend that I’m walking down the street with my camera and suddenly a thief runs by and snatches the camera. THe police recover the camera the following day. By your logic the pictures in the camera the thief took are his copyright???? Over my dead body, Ownership of the equipment has to play a role. Just because the thief took the pics even though the camera was stolen are suddenly his???

Hulser (profile) says:

Re: Re: Re:3 Re:

By your logic the pictures in the camera the thief took are his copyright????

That’s correct. It’s not complicated, really. Unless you explicitly transfer your rights to someone else, as in some kind of work-for-hire arrangement, you have the copyright on any picture.

Over my dead body, Ownership of the equipment has to play a role.

It doesn’t. Merely because you think something “has to” be, doesn’t mean it’s the law. It’s not.

Also, see this comment where others have discussed a the same scenario you describe:
http://www.techdirt.com/articles/20110714/16440915097/photographer-david-slater-claims-that-because-he-thought-monkeys-might-take-pictures-copyright-is-his.shtml#c1977

Ima Fish (profile) says:

Until I hear from the monkey?s lawyers, I will stick to the belief that I own the copyright,

Notice out Slater presupposes that someone must “own” the copyright. To him there are only two possibilities, either he owns the copyrights or someone else does. The third possibility, that they’re not covered by copyright is unimaginable to him.

Jay (profile) says:

Re: Copyright ruins everything

It’s the exact reason why I believe a lot of people have no respect for copyright law. It’s meant to stop you from doing anything.

I’ve heard the disingenuous arguments about how it helps creators create until the cows come home.

The monkey created something based on the surroundings. People enjoyed it. It’s an interesting story. But the copyright part ruins it. Why can’t people just enjoy the moment instead of having copyright take away from the enjoyment?

Bruce Ediger (profile) says:

Re: Re: Copyright ruins everything

Not only do I not have respect for copyright laws, and “IP” laws in general, I’m beginning to wonder about the USA legal system and it’s professionals. “The Law” seems to have crawled completely inside itself, the practitioners seem to think that legal reasoning and legal reasons override reality. All you have to do is get enough judges to believe a given legal theory, and *poof* it’s the new reality.

Dark Helmet (profile) says:

Re: Good god. Now you've a monkey fetish too.

“This is unique circumstances BUT this Slater was undoubtedly instrumental”

Uh, what? Leaving a camera lying around is instrumental? Creatively? HOW!!???

“so there’s no other reasonable conclusion than that he holds the copyright.”

Honest question: how can you know if there isn’t another reasonable conclusion when you’re clearly an unreasonable person?

Hulser (profile) says:

Re: Good god. Now you've a monkey fetish too.

so there’s no other reasonable conclusion than that he holds the copyright

This conclusion would be reasonable if copyright were treated the same under the law as actual property. But it’s not. That’s part of the problem in this discussion. The people who think that the “ownership” of the copyright “property” can be transferred to the human with the most involvement in the creation of a photo taken by a monkey don’t understand that no one actually owns a copyright. Contrary to the term intelectual property, a copyright is a set of rights that is akin to, but quite distinct from property laws. If you look at the issue this way, even people who aren’t legalistic weenies can understand that the picture is in the public domain.

Anonymous Coward says:

Re: Good god. Now you've a monkey fetish too.

“Slater was undoubtedly instrumental, so there’s no other reasonable conclusion than that he holds the copyright.”

There are plenty of other reasonable conclusions, but you seem to continually ignore them.

Copyright is a legal matter, so it’s perfectly reasonable to be “legalistic” when discussing it.

Anonymous Coward says:

“I will stick to the belief that I own the copyright.”

I once had to go to New York. What a dreadful place but that is another story. Anyway, I had to cross the Brocklen Bridge which automatically conferred ownership to me. And! Until I hear differently from a court of law I will stick to the belief that I own the bridge.

Jim_G says:

A big part of the problem here is that we are conditioned to think in terms of ownership. I notice that David Slater does not address the possibility that no one holds the copyright. His response suggests that the only options are him and the monkey.

It reminds me of how people have trouble thinking that something can be valuable and still be free. Their minds generate a “divide by zero” error. “Surely SOMEBODY must own this thing!” I think that a lot of artists would be surprised to hear that many things can not be registered, such as “a piece of driftwood even if polished and mounted.”

Hulser (profile) says:

Re: Re:

A big part of the problem here is that we are conditioned to think in terms of ownership.

This conditioning is in part is because of language. The correct term for the violation of copyright is of course infringement, but this term just isn’t familiar to most people. So people say “steal” and “theft” instead because they’re more familiar with these terms. But of course, the use of these words shape our ideas on the underlying concepts. (See “Intellectual Property.”) Indeed, people are conditioned to think of copyright in terms of ownership because one of the most fundamental aspects of our mental process, language, leads us to this.

That’s why new readers to TechDirt don’t understand that when we correct them on the use of “steal” and “theft”, they automatically assume that we’re freetards, pirates, or anarchists.

Josh Berry (profile) says:

Saying it was an "accident."

While I side with you on the public domain aspect, I think you are misrepresenting the usage of the word “accident” in the linked article. He does say that the first monkey “accidentally” pushed the button. He didn’t say he accidentally left the camera out and the monkey got it. Those are two different things.

This would be more akin to the pictures someone got of the people at Apple computers in the mall. The person that put the program on there didn’t know who or what would be in front of the camera, just that there was a chance it would be neat to see. In this case, the pictures were also triggered by behavior from the “people in front of the camera.”

Consider, if you give someone a rubiks cube that took pictures at every rotation, who would own copyright of the pictures taken?

Gotcha. says:

Re: Saying it was an "accident."

So then if the ones in front of the Apple computer actually triggered and took the photo, then they own the copyright to the photo of themselves, no? Certainly not the guy who write the app, since he didn’t actually take the picture – his role is more akin to the camera manufacturer here, and the ones having their picture taken are the ones that actually ‘pressed the button’ by triggering the app to respond.

But I’m not sure how that relates to this case here given that.

Josh Berry (profile) says:

Re: Re: Saying it was an "accident."

Again, I think I side on the “public domain” side of this. I definitely agree on the fair use aspect. I just think there is no contradiction in the one story where he said a monkey “must have accidentally taken a picture” and the one where he said he thought they would do this. He was just saying the first monkey probably didn’t realize the button was going to cause a sound to be made on the first push.

As for the people in the Apple store. I used that because it was fresh in my head and I don’t know the answer. Probably more accurately would be to compare this to the copyright on images taken at a wedding on the disposable cameras that some folks leave on the tables. I would assume the picture taker has no assumption of copyright ownership in those cases. Note, this isn’t “borrowed” equipment, this was taking part in a partially scripted environment where someone else made some initial ideas and gathered the results for arrangement.

Hulser (profile) says:

Re: Re: Re: Saying it was an "accident."

Probably more accurately would be to compare this to the copyright on images taken at a wedding on the disposable cameras that some folks leave on the tables. I would assume the picture taker has no assumption of copyright ownership in those cases.

Why do you assume this when all of the evidence presented by TechDirt is to the contrary?

Josh Berry (profile) says:

Re: Re: Re:2 Saying it was an "accident."

Is it? The evidence posted here is that transferred equipment does not leave the copyright with the equipment’s owner. Taking part in an event does not give one ownership of the event. Note, I specifically have no clue if someone else does own the copyright. I just don’t think the picture taker assumes they do. Rather, I think they should assume they do not.

Another example, I see a security camera pointed at a corner and decide to do a creative performance for it. I am the one doing the creative aspect of this, but I have no reason to think I own the copyright of the sequence recorded by the camera. Do I?

Hulser (profile) says:

Re: Re: Re:3 Saying it was an "accident."

Is it?

Yes. Look at the “Can We Subpoena The Monkey? Why The Monkey Self-Portraits Are Likely In The Public Domain” post. You’ll see details on how the person making the “creative contributions” has a claim on ownership. And they’re not talking about the creative aspects of the person being photographed, but the photographer in selecting how to take the picture. In your example, this is not the person who owns the equipment (the bride and groom) but the person who actually took picture (the guest).

The evidence posted here is that transferred equipment does not leave the copyright with the equipment’s owner.

I’m not sure how this supports your argument. It sounds like you’re agreeing with me. No, the copyright does not automatically go to the owner, but to the person who took the picture.

Another example, I see a security camera pointed at a corner and decide to do a creative performance for it. I am the one doing the creative aspect of this, but I have no reason to think I own the copyright of the sequence recorded by the camera. Do I?

Of course not! Why on earth would you think that? It’s quite simple, really. The person (and it has to be a person) who takes the picture or video has the copyright. Not a monkey. Not a bride or groom. Not a person doing a little dance in front of a security camera. The…person…who…took…the…picture.

Richard (profile) says:

Re: Re: Re:4 Saying it was an "accident."

The person (and it has to be a person) who takes the picture or video has the copyright. Not a monkey. Not a bride or groom. Not a person doing a little dance in front of a security camera. The…person…who…took…the…picture.

since NO PERSON TOOK THESE PICTURES

Therefore there is NO copyright

by your own logic

Josh Berry (profile) says:

Re: Re: Re:4 Saying it was an "accident."

I’m not sure how this supports your argument. It sounds like you’re agreeing with me. No, the copyright does not automatically go to the owner, but to the person who took the picture.

No, I’m making a distinction between “loaning” equipment, and having someone take part in an semi orchestrated event. The pictures can be seen as outcomes of the event of giving a camera to a monkey. Not just of the monkey taking the picture.

Of course not! Why on earth would you think that? It’s quite simple, really. The person (and it has to be a person) who takes the picture or video has the copyright. Not a monkey. Not a bride or groom. Not a person doing a little dance in front of a security camera. The…person…who…took…the…picture.

I’m saying this as it goes against where you are saying it requires “creative contribution” to get copyright. (To be fair, I don’t think you have directly said that, but that is the factor that has been commonly used here to determine that the person taking the picture gets the copyright.) Contributing some creativity to something does not grant you any sort of copyright in the matter, as you agree.

Hulser (profile) says:

Re: Re: Re:5 Saying it was an "accident."

No, I’m making a distinction between “loaning” equipment, and having someone take part in an semi orchestrated event. The pictures can be seen as outcomes of the event of giving a camera to a monkey. Not just of the monkey taking the picture.

I’m still not sure how this supports your argument. You said this…

“I would assume the picture taker has no assumption of copyright ownership in those cases.”

Emphasis mine. And, just to clarify things, where “those cases” is your example where weddings guests are taking pictures.

I contend that TechDirt has shown that the picture taker, if they’re familiar with the law, should have the assumption that they do have the copyright on the picture. Are you saying that by supplying the cameras at a wedding, the bride and groom have set up a “semi-orchestrated event” that constitutes a de facto work-for-hire arrangement where they retain the copyright of any picture taken with the cameras? Because that’s the only way I can think of there the people taking the pictures wouldn’t assume that they had the copyright on the pictures.

Josh Berry (profile) says:

Re: Re: Re:6 Saying it was an "accident."

I should say that in my head, there was also a note that said “please use this camera to help us capture some events from our wedding.” Or some such (could have been an announcement about why the pictures were there. Basically something where it is clear that the couple plans on using the results of the usage of the camera for their own purposes. In these cases, yes, I would believe the camera operator has no claim on the copyright of the images captured.

Hulser (profile) says:

Re: Re: Re:7 Saying it was an "accident."

I should say that in my head, there was also a note that said “please use this camera to help us capture some events from our wedding.”

IANAL, but while this would make the scenario a bit more complicated, I still don’t think it’d be enough to transfer the copyright to the bride and groom i.e. the organizers of the “semi-orchestrated event”. As Justin Levine alluded to in this thread, the only way that a someone other than the person who took the picture can have the copyright on a picture is to have entered into a work-for-hire arrangement. In short, you’d need a written contract in order to make it clear that an exception to the “picture taker gets the copyright by default” rule was being invoked. And no, I don’t think that a “please use this camera…” note would constitute some kind of verbal contract.

Josh Berry (profile) says:

Re: Re: Re:8 Saying it was an "accident."

So, there is no way I’m going to be able to respond to everyone on this one. I believe this response has the same basic thought as the other posts that I am going to be ignoring here. Apologies if I’m wrong.

I do not directly disagree that this may not be enough. I’m simply saying that I also do not directly know. I would have to cede that it is more complicated than the typical scenarios that people mention. That is pretty much the entirety of my point in this case.

I understand the basics of the other scenarios that people mention. It actually is pretty straight forward, in most cases. Where it gets complicated is where the person “taking the picture” either did so on your behalf, or was unaware that they were doing so. In this case, I think it would actually be more akin to the latter, but I think both cases are different enough to be unique.

So, if anyone has a direct link to the scenarios that I have mentioned, I am very interested. Otherwise, you have about as much authority claiming “definite answer” as I do saying “it seems like it may be more complicated.”

nasch (profile) says:

Re: Re: Re:9 Saying it was an "accident."

Where it gets complicated is where the person “taking the picture” either did so on your behalf, or was unaware that they were doing so.

Why? Do you have a reference saying it’s more complicated? Or does it just seem more complicated?

So, if anyone has a direct link to the scenarios that I have mentioned, I am very interested. Otherwise, you have about as much authority claiming “definite answer” as I do saying “it seems like it may be more complicated.”

We have references saying the owner of the copyright is the photographer unless it’s a work for hire. Some even specifically mention that this is true even when the photo is taken on someone else’s behalf with that person’s equipment. Have you not read the references? I don’t get where the uncertainty is.

http://www.techdirt.com/articles/20110714/16440915097/photographer-david-slater-claims-that-because-he-thought-monkeys-might-take-pictures-copyright-is-his.shtml#c1696

Josh Berry (profile) says:

Re: Re: Re:10 Saying it was an "accident."

I meant links as in precedent showing that this is the case. Failing that, I am not claiming you are wrong, but I also wouldn’t bet the farm on any of this. The rest is just speculation by people that should know, but sadly aren’t always correct. (Otherwise, we’d have a 100% track record here of predicting what the courts would decide.)

nasch (profile) says:

Re: Re: Re:11 Saying it was an "accident."

I don’t understand what you’re asking for. You’ve been shown references by authoritative sources clearly explaining what the law says. Why do you also want a precedent that also says the same thing the law clearly says? This is not some kind of gray area like fair use, it’s quite unambiguous. The creator of a work owns the copyright, absent some kind of explicit work for hire relationship. The ownership of any equipment used to make the work is irrelevant.

Anonymous Coward says:

Re: Re: Re:7 Saying it was an "accident."

This is not the way the law works (at least not in the U.S.).

The author owns copyright unless it’s a work made for hire or the copyright is subsequently assigned. Assignment needs a written document. Work made for hire needs a written agreement or an employment relationship.

Maybe the bride/groom can make a claim to co-authorship and co-ownership of the copyright in the photos to the extent they include images displaying the bride/groom’s original authorship (maybe posing, maybe the setting, etc.), but that’s a questionable proposition.

Anonymous Coward says:

Re: Re: Re:3 Saying it was an "accident."

I think, in most cases, the guest/photographer in the disposable camera scenario doesn’t assume anything regarding copyright.

Whatever they do or do not assume, they do (at least in the U.S.) likely own the copyright in the photos they take (although it is arguable that the subjects of the photos may also own a copyright interest).

Justin Levine (profile) says:

Re: Re: Re:2 Saying it was an "accident."

Probably more accurately would be to compare this to the copyright on images taken at a wedding on the disposable cameras that some folks leave on the tables. I would assume the picture taker has no assumption of copyright ownership in those cases.

Your assumption is 100% incorrect. Copyright law is clear that the picture taker would absolutely retain copyright in the image in this instance – absent an express agreement that they are taking the photo as part of a “work-for-hire” arrangement.

Hulser (profile) says:

Re: Re: Re:4 Saying it was an "accident."

You have something to back this up? Seems… well, dumb.

Well, first off, the stupidity of something has almost no correlation between whether or not it’s legal. Secondly, here’s an example for you and it even involves wedding pictures. When you hire a wedding photographer these days, by default the photographer retains the copyright on the pictures. That’s why you have to pay them for every copy you get and why they put the big watermarks on the thumbnails they make available online.

It doesn’t matter if the photographer borrowed the camera from a friend before hand. It doesn’t matter if s/he used camera equipment owned by the hall rented by the bride and groom. It doesn’t even matter whether the bride and groom supplied the camera. The photographer is making the creative contributions to the process of taking the pictures. The copyright is therefore his or hers.

nasch (profile) says:

Re: Re: Re:4 Saying it was an "accident."

“Ownership of a ?copy? of a photograph ? the tangible embodiment of the ?work? ? is distinct from the ?work? itself ? the intangible intellectual property. The owner of the ?work? is generally the photographer or, in certain situations, the employer of the photographer.”

http://www.copyright.gov/help/faq/faq-fairuse.html

“The copyright in the work of authorship immediately becomes the property of the author who created the work. Unless the photo is a work made for hire, then the other person [the person taking a photo of you with your camera] ? not you ? owns the copyright. “

http://www.photoattorney.com/?p=1492

More references if you’re interested:

http://www.google.com/search?q=who+owns+copyright+on+a+photo&ie=utf-8&oe=utf-8&aq=t&rls=org.mozilla:en-US:official&client=firefox-a

Anonymous Coward says:

Re: Re: Re: Saying it was an "accident."

“Probably more accurately would be to compare this to the copyright on images taken at a wedding on the disposable cameras that some folks leave on the tables. I would assume the picture taker has no assumption of copyright ownership in those cases.”

Actually, in this situation the guests taking the photos do have the copyright on them, not the people having the wedding. There have been cases where this has caused unexpected problems for the happy couple.

Anonymous Coward says:

Re: Re: Re:3 Saying it was an "accident."

I’ll have to refer you to google, because there’s so many of them. This is a good overview with regards to photography: http://www.photolaw.net/faq.html

“Generally, the person who creates a work is the owner of the copyright. Thus, independent artists, photographers and writers own the copyrights to their works. The only exceptions to this rule occur when a work is created by an employee as part of his or her job duties or when a work is created under a written ?work-for-hire? agreement.”

This is basic copyright stuff. The wedding portion of the question is not relevant. The creator (the one who tooke the pictures) has the copyright, no matter who owns the equipment, unless there is an agreement otherwise (work-for-hire, or copyright assignment).

This is no less true in a wedding than anywhere else. If you want guests to take pictures, and you want the copyright to them, then you must have them sign a copyright assignment.

Anonymous Coward says:

Re: Saying it was an "accident."

But he did leave his camera out accidentally, otherwise the camera wouldn’t end up in monkey hands. He specifically stated that he did not set up the entire sequence of events because he didnt keep his (physical) property on his body.

Say somoene stole the computer you were using and created a Modern-Impressionist piece of art with it. Does the person who owns the computer get the copyright? No, because he didn’t do anything and would have never made the same item created after his laptop was stolen.

Slater lost his TOOL ,to which something took pictures with. The tool doesn’t confer ownership of IP.

Josh Berry (profile) says:

Re: Re: Saying it was an "accident."

I haven’t read the whole article since, but the quoted section is simply relating the first instance of the camera being triggered. It is like a child playing with a toy that when you push a button it makes a click. The first push of the button is likely an accident, especially if it is the child’s first encounter with buttons. The giving of the device to the child is not an accident just because the child’s first press is.

Now, again, I have not reread the entire article. Can do so now. Just going off the quoted section.

Hulser (profile) says:

Re: Re: Re:2 Saying it was an "accident."

It says he “left it unattended.” Does not say that he accidentally left it unattended.

This is true, however, do you believe him that he purposefully set up the scenario so that the monkeys would take pictures? I think it’s obvious from the quotes in the article that the whole thing was an accident, not just the first click.

“‘One of them must have accidentally knocked the camera and set it off because the sound caused a bit of a frenzy, said Slater, 46.”

I don’t think he would have said “must have” done something that was his plan all along. His whole “clarification” of events is nothing more than one big “I meant to do that!”

Josh Berry (profile) says:

Re: Re: Re:3 Saying it was an "accident."

Meh, to this I have no idea. I was using examples of children, because that is exactly how I would describe watching some toddlers play with something. The first person to activate a jack-in-the-box likely didn’t do it on purpose. And it would cause a stir. And I wouldn’t have just accidentally given it to them, if I was also off watching them to have seen the incident as it happened.

So, hard to say.

Also, I’m not at all trying to say this changes everything. I don’t know enough of the law to say. Just comparisons to “lost” equipment don’t count. This is giving something to an agent that takes pictures, where that agent was unaware that it takes pictures. Only that it made clicking noises and had a reflective section.

Josh Berry (profile) says:

Re: Re: Re:5 Saying it was an "accident."

I should have said it was borderline libelous. You are entitled to think whatever you want, but you should not drag someone’s reputation in the mud because you think something that they may not have done. In this case, the photographer has not actually changed his story, so to accuse him of being a money grabbing opportunist who will change his story when it benefits him is a touch wrong.

Now, you can continue to claim he is wrong. That is something else entirely.

aldestrawk says:

Re: Saying it was an "accident."

In the Apple store example, the installed program just took photos at regular intervals, whether a customer was there or not. What I understood, was that the photos were only transmitted if the software identified a face as being in the photo. Is there still enough artistic input for copyright to apply for photos taken by a timer by a webcam that you neither own or configure as to position or framing? It gets even less clear if you consider a security camera, and the photos or videos it takes. This could actually be an issue because there are security camera videos that became viral on the internet. A recent case is the video of the thief of the Picasso drawing in S.F.. There is certainly some point for recorded images where there isn’t enough artistic input for copyright to involved. Exactly what is that point?

Brent Ashley (profile) says:

ownership vs copyright

Copyright is an oddly fitting glove for a foot such as this. There seems to be some conflation between copyright and ownership and the waters are very murky.

I’m struggling to grok how if I as a code monkey click the shutter button on your camera, I have extended control over the resulting image that’s on your memory card. If you never choose to do anything with that image or to send it to me, would I have a right to demand it from you? If you copy that image from your memory card to your computer and print it out or post it, do I have some magical dominion over your ongoing behaviour? If it were a film camera where you actually paid for the film that my click caused to be exposed, and you had to pay to process the film, would things be any different?

I’m inclined to say that it’s his camera, he owns the pics on it. The person who took the pic should get credit for taking it and perhaps share in ownership somehow, but I have a feeling that somehow it crosses some line to give that person full ownership and control.

Anonymous Coward says:

Re: ownership vs copyright

“I’m inclined to say that it’s his camera, he owns the pics on it. The person who took the pic should get credit for taking it and perhaps share in ownership somehow, but I have a feeling that somehow it crosses some line to give that person full ownership and control.”

It’s not so murky, in principle. Copyright is not a property right (and that’s why the term “intellectual property” is a nonsequiter.

The person who owns the camera can reasonably claim to own the pictures — that is, the physical instance of the pictures on their equipment. That does not mean they have the copyright, though. They can do whatever they want with the physical property they own, but unless they have the copyright they can’t reproduce and distribute the pictures.

Think of it this way — when I buy a magazine, it’s mine. I can do whatever I wish with it. I don’t have the copyright, however, and cannot reproduce the content of that magazine and distribute it despite my ownership of the magazine copy I have in hand.

But, to address your other question, having copyright does not give a property right either. The publisher of the magazine cannot demand that I give it to them, even though they have the copyright on it. I own that physical property, not them, and they have no right to steal my magazine from me. They own the rights to the material that is embedded in my physical copy.

mattshow (profile) says:

I would be careful about relying too heavily on the “fair use” argument. When most people think “fair use”, they’re thinking of fair use as it exists in US copyright law. I’m not sure what, if any, similar provisions the UK or Indonesia have in their laws, but I wouldn’t just assume it’s as permissive as what the US has. If any litigation did arise from this, there’s no guarantee it would be in the US courts or under US law.

Where this was litigated would also affect the question of how much creative input Mr. Slater had to put into the picture to claim copyright over it. The UK has mostly followed what’s known as the “sweat of the brow” approach – if you put work and effort into the creation of something, then you can claim copyright in it. The standard in the US is higher – they require more creativity and originality before you can claim copyright.

As a UK paper, the Metro almost certainly consulted UK copyright “experts”, who would follow the UK approach.

Gert-Jan says:

Re: I Would Be Careful

Now this is one of the problems of litigation in general and copyright specifically. It is ridiculous to have to be careful to not get sued over using material like the pictures that are discussed here.

The bar for claiming copyright should be high enough that nobody would have to be careful to copy material unless it is clear that the material is covered by copyright. The interpretation and handling of copyright law is completely out of control. The public domain gets violated again and again, and needs better protection from money seekers that want to free-ride the works they never created.

Anonymous Coward says:

ownership vs copyright

“If you never choose to do anything with that image or to send it to me, would I have a right to demand it from you?”

No. Copyright consists of rights to exclude others from doing something. Not a right to force others to distribute something.

“If you copy that image from your memory card to your computer and print it out or post it, do I have some magical dominion over your ongoing behaviour?”

Well, yes, but it’s not “magical.” It’s legal.

“If it were a film camera where you actually paid for the film that my click caused to be exposed, and you had to pay to process the film, would things be any different?”

No.

“I’m inclined to say that it’s his camera, he owns the pics on it.”

Me may own the physical media, but not any copyright.

In general, your feeling is not consistent with the law.

Bruce Ediger (profile) says:

Re: Re: Re:

And that’s where the real damage comes from, doesn’t it?

If you have to “consult a lawyer” to understand where a copyright lies (see also, the H.P. Lovecraft kerfuffle) then you’re not going to use something that just might possibly lie in a grey area. We’re impoverishing the giant bulk of the people, who can’t justify the cost of “consulting a lawyer” in order to use something that very probably is either (a) not under copyright or (b) the use is fair use. Our culture is much the worse for it. I have a number of books (“Where’s my Jetpack?”, “How to escape a robot uprising” among them) that don’t have very many illustrations. Why? I don’t know for sure, but I imagine because of the cost of getting copyright clearance. Just one example among many. Sucky books, in an age of on-demand printing, and digital photography and image manipulation. What a ripoff!

I also have to note that a lawyer, even an “IP” lawyer, can’t really tell you about who holds a copyright. Don’t you have to take it to trial to be absolutely certain?

Anonymous Coward says:

Re: Re: Re: Re:

Bruce, for this case, it really isn’t hard.

Mike doesn’t own the copyright on the image. The claimed copyright holder is telling him he should take it down. Mike either proves it’s in the public domain or takes it down.

You don’t need to consult a lawyer. The smart move would have been to remove the picture when asked, rather than making a huge fuss about it.

Anonymous Coward says:

Re: Re: Re: Re:

I don’t think any “brainwashing” is required. In 99% of cases, a photographer owns a copyright interest in the photo he/she is responsible for producing, unless there is some written agreement to the contrary and/or employment relationship. That’s not propaganda; it’s just the way the law works. That happens to not be the case here.

jupiterkansas (profile) says:

Re: Re:

Except one of the main reasons the pictures are so popular (besides being cute) is because the monkeys took the pictures themselves. That’s the only reason they’re on Techdirt. If Slater masterminded the whole thing, it wouldn’t be that interesting.

Slater’s just trying to make sure he keeps getting a paycheck form Caters.

Huph (user link) says:

Planet of the Apes

The same thing crossed my mind. There’s also a documentary about a chimpanzee raised as a human, Project Nim I believe it’s called, that is just being released. I thought it was odd that the doc would come out at the same time as the new Planet of the Apes movie, and now this. It’s almost too brilliantly orchestrated to be attributed to any marketing scheme. If it is an elaborate tie-in, someone deserves a freaking award.

aldestrawk says:

Re: Re: Planet of the Apes

Noam Chomsky would have more of a copyright, or rather trademark, issue with the name Nim than Robert O’brien would. I saw the movie, “The Secret of NIMH” with my son when he was almost 3. He thought it was too scary. I thought it was just strange, probably because I did an internship at NIMH while I was in college. I was involved with a study on human schizophrenics, but a friend of mine was doing a study which made cocaine addicts out of monkeys. I forget which type of monkey, but they were not Macaques.

aldestrawk says:

Re: Planet of the Apes

A Macaque monkey taking a self-photo doesn’t fit in with the subject of Project Nim. Firstly, Nim Chimpsky was a chimpanzee. There are larger differences between a chimpanzee and a Macaque than between humans and chimpanzees. Secondly, the documentary discusses the lack of scientific rigorousness of the “experiment” which was somewhat abusive of Nim.

Duke (profile) says:

Re:

In terms of “fair use” – you are correct that the UK has no fair use law – fair dealing for the purpose of criticism and review might hold, it depends on whether the court accepts criticism of the copyright issue as being close enough to criticism of the photograph.

Criticism for the purpose of news reporting doesn’t cover photographs, so that’s out. Of course, you’re in the US, and the UK isn’t quite at the stage of having foreigners extradited over copyright. He might (depending on how the Newzbin2 case goes) be able to get a blocking order against the site, though.

With regard to the public domain issue (following UK law), it is worth noting that for computer-generated works, “the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.” [s 9(3), CDPA 1988]. One could argue that, given this must be specified for computer-generated works, it does not apply to all other types of work – thus Slater isn’t the author (nor did he “create” it as required by s9(1)].

Annoyingly I was reading something earlier this week about the difference between thinking up ideas and creating the expression – I think it was in a case where the difference was held to be significant – can’t remember where, though.

Of course, all this is rather academic as the work was created in Indonesia, so Indonesian law applies; as discussed elsewhere, the relevant statement seems to be that “if a work designed by someone is realised and worked out by other persons under his guidance and supervision, the author shall be the person who designed the work.” So you’re arguing definitions of guidance and supervision. [source for Indonesian copyright law]

Karl (profile) says:

Re: Re:

Of course, all this is rather academic as the work was created in Indonesia, so Indonesian law applies

From the horribly Google-translated version that I read (through Chrome, so I can’t directly link to it), a couple things seem to be clear:

– The author must be a “person” or “people.”
– “If a person designed a work that embodied and carried out by others under the direction and supervision of people who design, Creator of Creation is the person who designed it.” (Told you the translation was terrible.)
– However, Indonesia has fair use laws very similar to the U.S., and it’s almost certain Mike would win on that defense:

Article 14
Not considered a violation of Copyright: […]

c. Repetition, either in whole or in part from news agencies, broadcasting institutions, and newspapers or other similar sources, provided that the source should be fully cited.

Article 15
On condition that the source must be cited, the following is not deemed as Copyright infringement:
A. Creation others use for educational, research, writing papers, preparing reports, writing criticism or review of a problem without harming the interest of the Creator;

I’m pretty sure Mike would prevail under these laws as well.

btr1701 (profile) says:

Justification

> You could make a copyright claim in that
> it IS your cat and your house and your lamp…

No, he can’t. That’s the point. Who owns the equipment used to make the image, or the locale in which the image was created, is irrelevant to copyright.

In both the cat and the monkey cases, there *is no* copyright because the ‘author’ was an animal and animals can’t legally hold copyrights. So the images are public domain. Uncopyrighted.

Chronno S. Trigger (profile) says:

Re: Justification

I think his argument was that the copyright would default to the animal’s owner, me. So, it’s probably not a good comparison (since the monkeys don’t have an owner). I guess a better one would be if the stupid rabbit living in my front lawn knocked over my tripod and took a picture of my house. Hmm.. I can’t get a good picture of my house, maybe I should try that.

Rose M. Welch (profile) says:

Re: Re: Justification

I think his argument was that the copyright would default to the animal’s owner, me.

Except that it wouldn’t because non-humans can’t have copyrights, so there’s nothing to default. If your child took the photos, it would default to you, but not your cat.

Also, these stories and threads are awesome. ๐Ÿ˜€

btr1701 (profile) says:

Re: Re: Justification

> I think his argument was that the copyright
> would default to the animal’s owner, me.

Sure, but the person who owns the tool used to create a work doesn’t automatically own the copyright. If I own a paintbrush, I don’t own the copyright on every painting created by someone using that paintbrush.

The cat in this case is just a piece of property, no different under the law than a paintbrush. Tha fact that you own the cat is irrelevant to determining who owns the copyright (or if there even *is* a copyright at all).

Brent Ashley (profile) says:

Every picture, every expression, every thought is naturally born into the public domain.

Copyright (similarly to patents) is an artifice introduced by humans to alter the natural course of free and open knowledge transfer. In order to accord benefit to the product’s creator, they are provided with a legal construct which allows them to restrict other humans’ use of their product and demand compensation.

Nobody *owns* the right to copy. They temporarily hold the right to restrict other humans’ behaviour with respect to their product.

At last that’s how it _should_ work.

Anonymous Coward says:

Merely for the sake of accuracy, the “public domain” is a term used in matters of copyright law and does not denote a “right” under law of the public as a whole, but only that the provisions of Title 17 no longer apply.

This is an important distinction. Simply because Title 17 may not apply, this is not dispositive of all potential legal issues. As I noted in a comment to your original article, there may be other legal bases upon which either the photographer and/or corporation may proceed, including, among others, bases associated with personal property laws (most of which are state, not federal).

I express no opinion as to the merits of other potential legal bases.

Anonymous Coward says:

What part of he owns the camera and film do you people NOT understand. If I grabbed your camera and took a picture that happened to be the most sought after photo in history, valued at millions and millions of dollars, Would that photo be mine? or yours? its your camera of course it would be yours. You people are trying to validate a losing battle. Reguardless of who took the photo, he owns the camera, its his photo, he owns it. and NO fair use does not apply to his photo. Because if it was an actual photo of a tornado or something else worth money, Whoever posted the photo would have to PAY royalties in order to use the photo. Just because you claim the person or animal who took the photo, cant claim copywrite, does not mean the photo is fair game to anyone who wishes to use it. Sure you can use it and get away with it, but in a court of law, its his photo to which you have NO rights to use. fair or unfair.. YOU OWE him..

Reguardless of how free you want the internet to be, stealing is stealing, and you are a theif.

Bruce Ediger (profile) says:

Re: Re:

In your example, I’m pretty sure that in the USA, you would hold the copyright. “Copyright” is not “ownership”. Copying something illegally is not theft, it’s infringement. And no matter how you slice it, I can copy that photo.Whoops! I just did it! Did I infringe? I doubt it. No matter what your opinion is, someone would have to take me to court to decide. Did I steal the photo? Absolutely not. I will not confess this to a priest as a sin, nor will St Peter mark it in the Book of Life against me.

Hulser (profile) says:

Eadweard Muybridge

Eadweard Muybridge was the guy who created the first “motion picture” by having a horse run through a series of trip wires, each connected to a camera. Put them all together and you have a movie. I’m guessing those original pictures are out of copyright now, but what if you recreated that scenario today? I’m guessing that the person who set up the scenario would claim a copyright, but I’m not so sure. There don’t seem to be many aspects of copyright law that actually favor the public domain, but it does appear that the copyright would only go to the human (if any) who actually triggered taking the picture and not to the person who set up all of the conditions which eventually lead to the picture being taken. And then to the public domain if no human triggered the picture.

Hulser (profile) says:

Re: Re: Eadweard Muybridge

He would have ownership because he specifically set it up to happen that way.

Yeah, you’re probably right. It’d be interesting to know more details about the cases that established this though. I just thought of this as a good example of a case where an animal “took” the picture, but there was clear, creative, and direct involvement by a person in arranging the picture, in contrast to the now infamous Slater/Monkey Case.

HothMonster says:

Re: Eadweard Muybridge

yeah what he ^ said. Mr. Muybridge(thats fun to say) set up the scene. He carefully placed each camera and then set a tripwire to guarantee it would go off at the appropriate time. Im sure he considered angle, light and framing when placing the cameras. Then he urged a horse to run through the scene he created.

Camera’s set to shoot on motion detection, tripwires and other automated means have long been used by nature photographers, I believe the idea of them setting up the camera and equipment allows them to retain the copyright. Because although they didn’t click the shutter, the set up the scene and placed everything in anticipation of an animal coming along and causing the picture to take.

This guy just had a camera stolen by some monkeys.

mike allen (profile) says:

all interesting however i look at it from a slightly different angle if I left a camera on a mmm lets say a park bench. Return later and find the camera (one million to one chance I know ) but please bear with me. Then discover some photos I had not taken would I be able to claim copyright on them I think not the same applies here Mr Slater did NOT take those pictures by his own admission. therefore he does not own copyright.

Anonymous Coward says:

Re: a family of monkeys

At a recent gathering at my brother’s house, someone (likely me) decided to grab his camera and start taking ridiculous pictures and not tell him. Of course, we all took a turn, for laughs.

Sample quotes:

– I’m going for my eyeball, close up…
– Nostril shot!
– He’ll never guess what this is!

We all composed our own shots using a piece of equipment that someone foolishly left on a kitchen counter for anyone to abuse.

Copyright follows the creation, not the tool. Isn’t that in the Berne Convention? Immediate copyright granted to someone when they fix their expression in some tangible form? The ownership of the tool means exactly squat. I don’t see the confusion.

Monkey see camera, monkey take picture, monkey not people = public domain.

Darren Ellis (profile) says:

Elephant painting copyright

It seems that this ground might have been trod before. There are several cases of Elephants painting. Does the copyright on those paintings belong to their keeper? their art teacher? the person who put a paintbrush in their trunk?

If David Slater’s assertion is that he owns the copyright because he left his equipment unmanned on the off chance that a photo would happen, it follows that the keeper of the elephant who lays out the art supplies would own the rights to any artwork that results.

PrometheeFeu (profile) says:

Most likely if you work with a photographer to setup and take a shot, you will jointly own the copyright. In practice it doesn’t matter because most likely you have a contract that says who owns the copyright. But, this is not what happened here. Here, someone left a camera unattended, a bunch of monkeys played with it and in the process pictures were taken. The sum total creative participation of the camera owner is very close to 0. (Even if he did do it on purpose) So, if they were humans, the government monkeys would own the picture. But they are not, so the picture is not covered by copyright.

Also, let’s remember what the argument is which grants photographers copyright. It is that they setup the shot choosing angles, lighting etc… Here, the government monkeys clearly were responsible for all those elements. At best, Mr. Slate owns the copyright to a performance piece which involves leaving a camera for government monkeys to play with. (By modern standards, that’s probably “art”) Since he’s not the first to do that (hey, I did it years ago, but the government monkeys did not return the camera) he doesn’t own the copyright on that.

Andrew D. Todd (user link) says:

Taking Pictures in a Zoo.

Of course, Bridgeman vs. Corel made it plain that mere “sweat of the brow,” even when highly skilled, does not create copyrightable matter.

http://en.wikipedia.org/wiki/Bridgeman_Art_Library_v._Corel_Corp.

Bridgeman vs. Corel is profoundly derived from the United States Constitution, and there is very little likelihood of it being changed. The kind of Englishman who thinks it will be changed is the kind of Englishman who thinks the United States will suddenly join the British Commonwealth.

Given the amount of skill which is customarily employed in art reproduction photography, Bridgeman vs. Corel easily covers the act of mounting a webcam somewhere. A state-of-the-art webcam has motion sensors, and takes a picture when anything moves. Photography with a hand-held camera is a bit more complicated, but similar in principle. National parks often shade off into zoos, by small increments. Monkeys in a national park allow people to get close to them because the state has restricted hunting. Experience has taught the monkeys that people are more likely to (illicitly) given them pieces of food, rather than to attempt to kill them. In short, the monkeys have become what amount to “park bears.” Often, there is a project to rehabilitate animals from zoos, laboratories, and the exotic-pet trade, who are profoundly accustomed to being issued their daily rations. “You mean you expect me to go and _find_ food _out there_?!! Who’s gonna _cook_ it?!!$” The result is that the density of “interesting animals” is a hundred or a thousand times what it would be in a state of nature.

The photographer David J. Slater is not in any meaningful sense the author of this semi-tame mentality, and cannot claim credit for the monkeys’ willingness to fraternize.

http://www.djsphotography.co.uk/DavidJSlater.htm

I have known people who spent a year or so, living with a particular troop of monkeys. One of my old anthropology professors,Paul E. Simonds at the University of Oregon, put in his year with a troop of bonnet macaques in India, circa 1960, and had a funny story to tell about it. At the end of his time in the field, he decided to try something. He sat down beside a macaque, and “groomed” the macaque’s fur. The macaque absent-mindedly turned to groom back, when he realized that Simonds did not have any fur, whereupon the macaque gave him “a really dirty look,” and stalked off. These monkeys were not exactly in a state of nature, but they were somewhere about the point where monkeys come in conflict with farmers. It wasn’t just “Hi, there!”

In looking critically at wildlife photographs, the first thing one has to do is to find out where they were taken, and then find out how much tourist infrastructure is in place. I notice that Slater refers to “roughing it” In Africa or Southeast Asia, roughing it often actually means getting malaria or typhoid, or dengue fever, or dysentery, as American, British, and French soldiers did in various wars. In a third-world national park, there is likely to be a little industry of natives who make a living by giving guided tours in motorized houseboats or whatever, complete with refrigerators and an adequate supply of ice. And yes, the guides do put down bait in appropriate places to be sure of having something to show their customers. So the first question you have to ask about a wildlife photographer is, how far beyond the guides did he go? It appears that David Slater flies into a country for a couple of weeks, visits the nature-parks, takes the commercially available guided tours, takes pictures, and flies out again. I find it impossible to take him seriously as a wildlife observer, having met the real article.

In hunting, the use of bait is generally considered poaching. If you spread some corn on the beach, and shoot the ducks which land to eat it, that is poaching, pure and simple. There aren’t really comparable ethics for photography, because photography isn’t about killing. There’s nothing wrong with putting some grain on your windowsill, and using your macro lens to photograph a bird at a range of six inches. However, when someone is posing as a “great explorer,” that kind of issue does come into question.

Another amusing story: at a park on the local small river, a man was handing out stale bread to a flock of Canada Geese. He had a great big bag, the size of a trash bag, full of foot-long Italian hoagy rolls, presumably the out-of-date bread of a pizza parlor. So he was handing them out, one roll at a time, and the geese were clustering around him. As each goose got a roll, it would turn and march off to the waterside, holding the roll awkwardly in its bill, and soak the bread in the water to reduce it to edible size and texture. These were not just civilized geese, but proletarianized geese.

Simple Mind (profile) says:

it's just a picture of a monkey

Why all the fuss? This copyright thing is getting way out of hand. I have taken many pictures of animals and posted some of them on the net and people are free to do whatever they want with them. What kind of a-hole do you have to be to make a big deal out of some animal pictures? On my planet, this man and his children and his lawyers and their children would all be taken out and immediately shot.

Anonymous Coward says:

I think a case could be made that if he cropped, color balanced, or otherwise enhanced the found images aesthetically before publishing them, then the published images constitute a derivitave work of a possibly public domain image (his raw source files.) The question of mechanically recorded images as being public domain or original works has been discussed, sounds like the legal standing of a copyright claim is decided on a case by case basis: http://en.wikipedia.org/wi​ki/Threshold_of_originalit​y#Pre-positioned_recording​_devices

Anonymous Monkeyboy says:

copyright vs publicity rights

I made a joke yesterday about this issue, but this is actually where the ridiculousness of these current positions is going to land us.

Let’s say a photographer snaps a pic of me. According to this logic, the photographer owns the copyright. Unfortunately, I own my publicity rights. So that photographer’s “copyright” conflicts with my “publicity rights” and I’m going to sue him for using my image in his photo.

Using this logic, Slater would be liable to the Indonesian park for violating their publicity and “image control” rights, because the monkeys are “owned” by the park. Hence, he better make a deal with the park for his “copyright” because the park may well sue for their “publicity rights.”

I guess Slater never heard of the Streisand Effect. Perhaps his modification of it should now be called the Slater-Monkey Effect; “asserting a ridiculous position, modifying a published story modification after the fact and insistence on publicly attaching the value of idiocy to one’s actions in pursuit of money”

Michael (profile) says:

STOP IT RIGHT NOW

The copyright is actually mine. Let’s just settle this before we waste any more of our time.

I let David Slater bring his camera there. I also knew that monkeys are capable of taking pictures. As you can clearly see, I set up the framing and circumstances for each one of the portraits. The copyright is mine and I’d appreciate it if you would all stop lying and saying otherwise.

Dave (profile) says:

More BS Rides Again

Folks, the real bottom line on this silly thread is that Slater wants to be paid for the picture in HIS camera, regardless of who or what pushed the button, and preferably in large amounts. That is the ONLY reason for a copyright claim. And yes, he will continue with the claim until a court, somewhere, shuts him down. I don’t blaim him. I’d do it too.

Lisa Westveld (profile) says:

Uhoh... Derivate work?

Well, okay… Let’s assume TechDirt is right. This monkey took a picture and a monkey cannot be seen as the maker of this picture. Thus, it has no owner.
However, David Slater did not publish the original photo! He used the original photo to create a derivate work! He probably changed the size a bit, maybe straightened the monkey up a bit, blurred the background, adjusted the contrast, brightened the colors and whatever more. As a result, David might not be the maker of the original photo, but he is the maker of this derivate work!
Thus, David is the rightful author of this derivate.

Sure, the original photo becomes part of the public domain once it is published. But no one published the original, did they? David could simply erase the original thus making it impossible for the original photo to become part of the public domain! Then all we have is his derivate work, which is close to the original, but not exactly the same.

Lisa Westveld (profile) says:

Re: Re: Uhoh... Derivate work?

Speculating. ๐Ÿ™‚ Of course, David Slater should then explain what he did to modify the original picture to be able to claim copyright over those modifications.
Besides, I don’t think he posted the original. As I understand, a work is only part of the public domain if it’s published without an author, or when the author puts it in the public domain. Slater only published a derived work but not the original.
Would cutting and resizing a photo count as a new, derivate work according to British law?

nasch (profile) says:

Re: Re: Re: Uhoh... Derivate work?

Slater only published a derived work but not the original.

Now you’re stating this as though it’s a fact… not speculation?

Would cutting and resizing a photo count as a new, derivate work according to British law?

I would guess not, but if it’s like US law, it would have to be decided by a court, kind of like fair use.

Brendan (profile) says:

Uhoh... Derivate work?

Fair use for Slater, or for TechDirt?

I’m not sure how anyone reasonable could argue against TechDirt’s fair use — it was reporting on the story _about_ the image, to which the image in question is relevant information. It was not merely reporting the image for artistic effect.

Fair Use in the US is pretty explicit about the exception for reporting/news gathering.

Hulser (profile) says:

Saying it was an "accident."

<>(although it is arguable that the subjects of the photos may also own a copyright interest)

What’s your reasoning that the subjects would have any “copyright interests”? As I understand the law, a subject could have some publicity rights, but no claim to the actual copyright. And perhaps someone could make a trademark claim, such as the maker of the dress or any the manufacturers of any products which appear in the picture. I’m not saying you’re wrong; cust curious why you think this issue would be in question.

Josh Berry (profile) says:

Saying it was an "accident."

Apologies for going silent, I hadn’t checked to get emails when you responses were added.

This is basically the argument I wasn’t sure had been done in courts before.

Regarding the links, correct me if I’m wrong, but none of these have been challenged in a legal environment, right? If you find me a court decision showing that it is literally the person that clicks the shutter button, I’ll be good with that interpretation.

In general, I’m good with the interpretation as given in these stories. I just can understand why someone might feel otherwise, and I am far from confident enough in saying that they are unilaterally wrong.

Also, as I said in another post. I hadn’t meant to get drawn in to this actual argument. Not interesting to me. I just wanted to say that the photographer had not necessarily said the entire shoot was an accident. ๐Ÿ™‚ I still stand by that assertion.

Anonymous Coward says:

Saying it was an "accident."

It doesn’t really have anything to do with what title you want to give them.

It has to do with whether they contributed sufficient original authorship to the work with the intention that it be contributed to an inseparable whole.

So, let’s say they did all the flower arrangements and clothing and lighting themselves, and did some of their own poses, with the intention that it be recorded in their guests’ shots. I think there’s an argument that they and their guests are coauthors/coowners of the copyright.

It’s going to be a case by case, and even a photo by photo, analysis.

Anonymous Coward says:

Saying it was an "accident."

If my own original, creative authorship is captured in a photo taken by someone else, I may have a claim to copyright ownership (potentially as a co-author/co-owner of the copyright with the photographer).

If I do my own makeup, design my own clothes, and pose myself for a shot, and the photgrapher decides on lighting, aperture, and angle, we may be coauthors/coowners of the copyright in the shot.

nasch says:

Saying it was an "accident."

Regarding the links, correct me if I’m wrong, but none of these have been challenged in a legal environment, right? If you find me a court decision showing that it is literally the person that clicks the shutter button, I’ll be good with that interpretation.

I don’t know if it’s never been challenged. I also don’t know why you’re so interested in a court case. Would you believe there’s a federal statute criminalizing murder if there weren’t any court decisions affirming the law? It’s not like a law isn’t really a law until a court rules on it.

Hulser (profile) says:

Saying it was an "accident."

If my own original, creative authorship is captured in a photo taken by someone else, I may have a claim to copyright ownership (potentially as a co-author/co-owner of the copyright with the photographer).

Again, I ask what is your reasoning that this is true? I don’t care fuckall what you think is your rights. I’m asking you what, based on the law, you belieive to be your rights. I asked you an honest question and you replied with conjecture and wishful thinking.

If I do my own makeup, design my own clothes, and pose myself for a shot, and the photgrapher decides on lighting, aperture, and angle, we may be coauthors/coowners of the copyright in the shot.

Not according to the law.

Karl (profile) says:

Saying it was an "accident."

If you find me a court decision showing that it is literally the person that clicks the shutter button, I’ll be good with that interpretation.

How bout the U.S. Copyright Office?

The owner of the ?work? is generally the photographer or, in certain situations, the employer of the photographer. Even if a person hires a photographer to take pictures of a wedding, for example, the photographer will own the copyright in the photographs unless the copyright in the photographs is transferred, in writing and signed by the copyright owner, to another person. The subject of the photograph generally has nothing to do with the ownership of the copyright in the photograph.

Grant (profile) says:

Saying it was an "accident."

In Australia we have this fun thing called “performance rights” so to do something like record a live performance of dance the copyright on that performance extends to the performer.

http://www.copyright.org.au/admin/cms-acc1/_images/21295559044c8dbff3efec5.pdf

So in australia you do have legal rights on recordings of your little dance in front of a security camera.

nasch says:

Uhoh... Derivate work?

But until proven otherwise, David Slater will have the copyright on the derived work.

I don’t know about Indonesian law, but it sounds like it has some similarity to the US in copyright. In the US, you don’t get copyright on whatever you claim until it’s proven you don’t have it. Copyright applies to some things and not others, and you don’t get a copyright on something not copyrightable just by claiming it. For example, if I claim I hold the copyright on the number 3, that doesn’t mean I have that copyright until a court rules that I don’t.

Karl (profile) says:

Uhoh... Derivate work?

But until proven otherwise, David Slater will have the copyright on the derived work. Innocent until proven otherwise.

You have a strange definition of “innocent,” since Slater is the one accusing others of being guilty.

Regardless – that’s not how copyright law works. You must prove that you are the legal owner of the infringed right, before any infringement claim can move forward.

If Slater really is going to claim the photos from the website are “derivative works” of a public domain photo, he still probably wouldn’t be able to claim copyright, under the Bridgeman v. Corel ruling.

mlbrozin (profile) says:

Agent rather than copyright

If Slater merely represented that he was serving as the agent of the monkey(s) rather than go after copyright, he may have saved himself a whole lot of controversy. Just like the Taco Bell dog owner gets paid for the dog’s acting.
Funny how the owners started out hanging out in extra’s holding and ended up having their own motorhome once the dog caught on.

Bob says:

Good Fortune could be great with Good Attitude

This picture is going up in a billion places. For copyrights to work, they are going to need to be defended in a billion places. Why bother? Today’s approach of tagging the image with the camera owner’s name and thus getting some credit for it, along with a link back, will produce more *postivie* interest than threats to take down the image. Will people actually search out this image in 2-3 weeks? in the mean time, they are blowing the best PR, positive, fun thing, with a bunch of stupid threats.

Grant Moyse (user link) says:

Monkey Selfie

What a brilliant photo. So clever the way the monkey got the settings on the camera right – perfect exposure, depth of field, lighting, focus.

If he’s that bloody clever surely he must have a bank account for you to pay him royalties.

Or the other vague possibility…… is that David Slater took the time to go there, spent time understanding behaviour and set it up and so it is creativity and thus copyright.

I believe that you should take the picture down immediately, accept that you have made a mistake and apologise.

Grant Moyse

nasch says:

Monkey Selfie

Or the other vague possibility…… is that David Slater took the time to go there, spent time understanding behaviour and set it up and so it is creativity and thus copyright.

Or you could read the article, where it’s clear that isn’t what happened, and that instead that is one of hundreds of photos the monkeys took. Not surprising that one of them is good.

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