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

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

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

However, now we have a similar, but different, story where I think it's a very valid question. Mr. LemurBoy points us to a story involving an award winning nature photographer, David Slater, who was in Indonesia in a national park. At some point, he left the camera unattended, and apparently a macaque monkey wandered over and took this hilarious self-portrait:
Now that's the best photo of the bunch, and appears to have no copyright notice on it (though that doesn't mean it's not covered by copyright), but two of the other photos, which the article also claims were taken by the monkeys, do have copyright notices, with the claim being that the copyright is held by the Caters News Agency.

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

Filed Under: copyright, monkeys

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  1. icon
    bhull242 (profile), 12 Dec 2017 @ 11:59am

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

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

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

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

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

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

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

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

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

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