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Copyright

by Mike Masnick

Mon, Mar 28th 2016 12:46pm


Filed Under:
animals, cats, copyright, peta, selfie cat, selfies

Companies:
peta



Will PETA Now Sue To Control The Copyright In These Cat Selfies?

from the questions-questions-questions dept

As noted recently, PETA isn't giving up in its quixotic quest to argue that it can represent the interests of an Indonesian selfie-taking monkey, and further that the photos in question have a copyright and that copyright belongs to the monkey (and, by extension, PETA). UK IP professor Andrés Guadamuz recently wrote an interesting paper arguing that there is a copyright in the photograph and it belongs to the guy who owned the camera, David Slater, based on UK copyright law. It's an interesting read, though others have convincingly argued the opposite, noting that UK law requires a "person" to have created the work.

Either way, it seems this question may not be going away any time soon. Guadamuz has now also posted an amusing blog post highlighting the next potential battleground: a cat who loves to take selfies. I mean, just look at them. While there are some clearer shots, I think this one is clearly the best, based entirely on the cat's "I'm concentrating here" tongue:
Guadamuz notes that it's not entirely clear how much control the cat really has in these pictures, and they may really be the camera owner holding the camera itself, and snapping the photo when the cat is incentivized to reach in. In that case, there's a stronger copyright claim for the original camera owner -- an Instagram user by the username "youremahm". But, as Guadamuz notes, the real question is whether or not PETA will now sue on behalf of the cat.
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  • identicon
    Baron von Robber, 28 Mar 2016 @ 12:57pm

    Dog1: What is cat doing?
    Dog2: Checking the f-stop.

    [ reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 28 Mar 2016 @ 12:58pm

    Depends on how popular the image gets

    [ reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Mar 2016 @ 1:03pm

    Now I'm wondering when PETA will discover publicity rights...

    [ reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Mar 2016 @ 1:05pm

    Ok next question...

    What about game cameras that are set up with motion detectors to trigger the shutter? Are all of those automatically public domain?

    [ reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Mar 2016 @ 1:36pm

      Re: Ok next question...

      That is a situation we at PETT (People for the Ethical Treatment of Technology) hope to solve.

      [ reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 28 Mar 2016 @ 1:50pm

        Re: Re: Ok next question...

        How exactly?

        [ reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 28 Mar 2016 @ 1:58pm

        Re: Re: Ok next question...

        Mind you these sorts of cameras are used for all kinds of other purposes besides hunting. Which also brings me to a separate related issue. Consider the use of one of these cameras set up for security purposes not directly related to the stupid argument over whether a non-human animal can hold a copyright:

        If the shutter is triggered by a motion detector on one of these cameras used for security purposes that captures the image of a thief committing a burglary, does the perpetrator then own the copyright to the image?

        [ reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 28 Mar 2016 @ 11:25pm

      Re: Ok next question...

      As far as I know in those cases there is a valid copyright, and it's owned by the one who set the cameras up. The owner of a game camera is specifically setting up the camera(s) in such a way to intentionally take shots when certain conditions are met, such as motion being detected within a certain area. They may not be pressing the button to take an individual photo, but they still intentionally set up the situation such that they would be taken.

      What made the 'monkey selfie' different was that the photo was purely accidental on the part of the only individual capable of owning the copyright(the human owner of the camera), with no intent at all on their part. They didn't set up the situation(beyond negligence), they didn't choose when to take the photo or of what, the only link they had to the event was that it involved their camera, which isn't enough to grant copyright over the resulting photo.

      Now had they deliberately left one or more cameras out with the specific intent of hoping that the monkeys would use them, then they might have had a valid copyright claim, but as it stands there was no intent on the part of the only individual involved who was legally capable of owning the copyright to the picture, which means there was no resulting copyright.

      [ reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 29 Mar 2016 @ 7:54am

        Re: Re: Ok next question...

        So you are arguing that intent is what sets it apart. Intent (or the lack thereof) can be a pretty high bar to prove one way or another. Also if intent is an important element, it has degrees. Are so called "happy accidents" not covered by copyright simply because the image that was created wasn't the original image intended by the photographer? The question then becomes where is the line drawn?

        [ reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 29 Mar 2016 @ 9:39am

          Re: Re: Re: Ok next question...

          Intent to create something plus actively doing something to create I'd say, and I don't think it's that high of a bar to meet.

          If someone manages to accidentally take a photo the split second that a lightning bolt strikes, then while they may not have intended to take that photo, they still had the intent of taking a photo, so they'd still get the copyright over the resulting picture.

          On the other hand, say they forgot their camera outside, a curious squirrel is checking it out, and startled by the noise of the strike they press the button at just the right moment, taking the exact same photo. Would you still say that the owner of the camera deserved the rights to the picture, even though the only input they had in it's creation was their carelessness?

          If someone splashes paint on a canvas for a piece then they intended to create, and get the rights to it. If someone walking past stumbles, trips, and accidentally sends paint flying on a canvas, do they deserve the 'rights' to the resulting picture, for what was for all intents and purposes a completely accidental action?

          [ reply to this | link to this | view in chronology ]

          • icon
            Dave Cortright (profile), 29 Mar 2016 @ 10:07am

            Re: Re: Re: Re: Ok next question...

            So taking this "intent implies copyright" logic to the extreme, we will be living in a world where any photo that is released will be accompanied by some boilerplate language along the lines of "I completely and totally intended to take this photo, and therefore I and I alone own the copyright on it". Even for a frame or clip of a surveillance video. "Yes, I knew that this particular location was very likely to have police brutality happen, and I angled it in just such a way to get this particular shot, so you may not use it to report on the story unless you pay me royalties".

            [ reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 29 Mar 2016 @ 10:10am

            Re: Re: Re: Re: Ok next question...

            As I said below in a different thread. This line of thinking is all relatively new and brought about by the digital age. Prior to that ownership of the copyright went with ownership of the original image since there was only one original image and possession of it was sufficient to prove that you owned the copyright and to dispute it you had to prove that the original was somehow unjustly taken from you and if you were successful, the person who was in possession of it was ordered by the court to return it to you.

            [ reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 29 Mar 2016 @ 10:14am

            Re: Re: Re: Re: Ok next question...

            But still intent often easy to claim in hindsight and often very hard to prove or disprove. I also don't remember seeing anything in the discussion over the monkey selfie where anyone argued that intent had anything to do with it.

            [ reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 28 Mar 2016 @ 1:05pm

    Ah, meme mayhem. And popcorn. I anxiously await for PETA.

    [ reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Mar 2016 @ 1:11pm

    Wouldn't PETA first have to sue to get ownership of the cat?

    [ reply to this | link to this | view in chronology ]

    • icon
      sorrykb (profile), 28 Mar 2016 @ 3:26pm

      Re:

      Wouldn't PETA first have to sue to get ownership of the cat?

      Look at that cat. That cat owns all.
      He even has a couple of henchdogs to back him up.

      [ reply to this | link to this | view in chronology ]

  • icon
    Dave Cortright (profile), 28 Mar 2016 @ 1:13pm

    What about trailcams / camera traps? Or surveillance video.

    At some point the courts are going to have to decide also on cases where a camera is set up in a location and either captures images automatically (e.g. surveillance) or via a trigger that is tripped by a subject entering the scene (trailcams / camera traps).

    Wildlife researchers and photographers have been using the latter technique for a while. Granted Steve Winter did a lot in selecting the equipment, settings, angle, etc. But ultimately it was the mountain lion that triggered the shutter at that particular instant:
    http://proof.nationalgeographic.com/2013/11/14/a-cougar-ready-for-his-closeup/

    [ reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Mar 2016 @ 1:14pm

      Re: What about trailcams / camera traps? Or surveillance video.

      I just asked that.

      [ reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 29 Mar 2016 @ 4:58pm

      Re: What about trailcams / camera traps? Or surveillance video.

      I would argue that in the case of a camera trap which is set up in such a way that the equipment cannot easily be moved by the animals you are there to photograph, then the human has the copyright. In David Slater's case, however, the triggering of the shutter was unintentional, and he therefore has no copyright under UK law.

      [ reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Mar 2016 @ 1:19pm

    Vexatious Litigation

    Can we classify PETA as a vexatious litigant yet?

    [ reply to this | link to this | view in chronology ]

  • identicon
    Barry Sotero, Jr., 28 Mar 2016 @ 1:51pm

    PETA needs to go

    fight a real animal rights battle. At best, they're a complete joke of an organization.

    [ reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Mar 2016 @ 2:35pm

    I stopped reading after PETA trying to insist the copyright to the monkey selfie belongs to the monkey.

    There is so much concentrated stupid there it should classified as a drug.

    Seriously, if you can't see how stupid it is how a monkey can hold copyright over anything then I've lost whatever faith in humanity I still have.

    [ reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Mar 2016 @ 2:35pm

    I stopped reading after PETA trying to insist the copyright to the monkey selfie belongs to the monkey.

    There is so much concentrated stupid there it should classified as a drug.

    Seriously, if you can't see how stupid it is how a monkey can hold copyright over anything then I've lost whatever faith in humanity I still have.

    [ reply to this | link to this | view in chronology ]

  • icon
    GMacGuffin (profile), 28 Mar 2016 @ 2:47pm

    Solution / + SnapCat App

    The easy solution is not to tell anyone the animal took the pic (which of course tends to remove any critter-related value enhancement).

    SnapCat is an Android app that has a red dot moving around on the screen, and when your cat tries to touch the dot, it takes a shot. I have bunches of terrible shots taken by my cat archived somewhere. Given the right motivations, it's not terribly hard to get cat to take pictures.

    [ reply to this | link to this | view in chronology ]

    • icon
      Dave Cortright (profile), 28 Mar 2016 @ 3:11pm

      Another solution: keep original private; only release your transformative edit

      If you are the sole possessor of the original, then you can make edits (crop, color, contrast, brightness, levels, retouching, etc) so as to render that version copyrightable. I don't believe there is anything that would compel you to release the original.

      [ reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 29 Mar 2016 @ 10:49am

        Re: Another solution: keep original private; only release your transformative edit

        When I shoot, I keep RAW unedited files that I never give to clients or anyone (not that they want unprocessed images anyway) for that reason. With film, perfect duplication is not possible so there is only one original and possession of it so that made a practical standard to base decisions of ownership on that ceases to exist in many cases with digital media.

        [ reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 30 Mar 2016 @ 10:25am

        Re: Another solution: keep original private; only release your transformative edit

        I believe the changes have to be sufficient to be what is called "transformative".

        [ reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 Mar 2016 @ 10:22am

      Re: Solution / + SnapCat App

      The easy solution is not to tell anyone the animal took the pic...

      Perjury, it's not just for cops anymore.

      [ reply to this | link to this | view in chronology ]

  • icon
    Derek Kerton (profile), 28 Mar 2016 @ 3:13pm

    Elephant [dogs] In The Room

    "I think this one is clearly the best, based entirely on the cat's "I'm concentrating here" tongue"

    You thought the most salient thing was the tongue? Not the fact that the cat was lackadaisically snapping selfies while two ferocious, predatory, sworn enemies lurked in the background?

    That's like me taking a picture of you hugging RIAA Cary Sherman, and saying the most notable element was the color of shirt you were wearing.

    [ reply to this | link to this | view in chronology ]

    • icon
      sorrykb (profile), 28 Mar 2016 @ 3:38pm

      Re: Elephant [dogs] In The Room

      You thought the most salient thing was the tongue? Not the fact that the cat was lackadaisically snapping selfies while two ferocious, predatory, sworn enemies lurked in the background?
      Those dogs are standing ready to do Manny Cat's bidding. They work for him.

      [ reply to this | link to this | view in chronology ]

  • icon
    Derek Kerton (profile), 28 Mar 2016 @ 3:18pm

    Tie Goes To The Runner

    I think it's clear that there will be copyright cases where the argument for "ownership" isn't clear. Is there no legal rule-of-thumb that in such cases, NO ownership can be enforced?

    I mean, baseball has it figured out. Tie goes to the runner. I suggest the new legal precedent have a rhyme and model itself after the OJ Simpson "If the glove don't fit, you must acquit."

    Something like: "If a monkey clicked it, then you can't have knicked it."

    [ reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 29 Mar 2016 @ 8:57am

      Re: Tie Goes To The Runner

      An interesting point to be made here is that this sort of argument really only came about as a result of the digital imaging technology. Prior to digital cameras, copyright ownership was determined by possession of the original image (ie. the film) which is why professional photographers virtually never gave away original negatives or slides even if they never intended to ever print or publish the image again as a general rule. But with digital imaging, copies can be perfect reproductions of the original making possession of the original image a difficult thing to prove.

      [ reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 30 Mar 2016 @ 10:31am

        Re: Re: Tie Goes To The Runner

        Prior to digital cameras, copyright ownership was determined by possession of the original image (ie. the film)

        Umm, no, it was not. Copyright belonged to the creator unless it was work for hire or assigned otherwise. You won't find "whoever has possession of the negative owns the copyright" in copyright law.

        [ reply to this | link to this | view in chronology ]

  • icon
    Black Art (profile), 28 Mar 2016 @ 3:31pm

    The only way this would work is if the judge was a PETAphile.

    [ reply to this | link to this | view in chronology ]

  • identicon
    Digitari, 28 Mar 2016 @ 3:37pm

    I always thought

    P.E.T.A.

    Pinups Enabling Terrible Activities (Y)

    [ reply to this | link to this | view in chronology ]

  • icon
    ChurchHatesTucker (profile), 28 Mar 2016 @ 4:57pm

    "youremahm"

    You know who else likes to take selfies?

    [ reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Mar 2016 @ 5:41pm

    I'm starting to see why antidirt likes making chicken noises.

    Because he's a rooster, and he's been trying demand copyright on the noise he calls an argument.

    [ reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Mar 2016 @ 6:07pm

    Just when I thought we had enough monkey business to warrant a cat nap for a while look what the cat dragged in. All these legal arguments going around in circles look like a game of cat and mouse.

    [ reply to this | link to this | view in chronology ]

  • identicon
    ZEM, 28 Mar 2016 @ 10:49pm

    thirteen@neetriht.com

    Just looking forwards to the time when PETA claims copyright to all every single literary work. The exploitation of 100's of monkey's on typewriters can't stop soon enough.

    [ reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Mar 2016 @ 4:27am

    Cat's last selfie

    Felix the feline yelled out to his buddies, hey guys, watch this! He then proceeded to jump the fence where Zeus and Thor reside and snap a selfie. Felix was never seen again.

    [ reply to this | link to this | view in chronology ]

  • identicon
    haha hehe hoho, 29 Mar 2016 @ 5:25am

    be awful funny if....

    be awful funny if , as peta gets to court spends all kinds a cash we have the person thats behind that pic show another person photoing him do this to set them up.....and then counter sue for all the abuses one can in illegally trying to represent his photo.

    [ reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Mar 2016 @ 8:55am

    The persons creative work involved handing the camera to the monkey/animal. Issue solved. it's the owner of the camera that gets copyright. ( and should be required to split the proceeds with whoever/whatever is in the camera.) Meaning if it's a tree, then the money should get donated to the "trees of the world". If it's a monkey then the funds should be directed to the account that is paying for that monkey to survive.

    Problems solved.

    [ reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Mar 2016 @ 10:27am

    First we had a monkey and now it looks like we have a copycat.

    [ reply to this | link to this | view in chronology ]

  • identicon
    Sharatan, 29 Mar 2016 @ 10:44am

    Abolish Copyright

    Stop the monkey business.

    [ reply to this | link to this | view in chronology ]


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