Monkey Selfie Photographer Says He's Now Going To Sue Wikipedia

from the this-will-never-end dept

Thought the monkey selfie saga was over? I'm beginning to think that it will never, ever, be over. If you're unfamliar with the story, there are too many twists and turns to recount here, but just go down the rabbit hole (monkey hole?) of our monkey selfie tag. Last we'd heard, PETA and photographer David Slater were trying to settle PETA's totally insane lawsuit -- but were trying to do so in an immensely troubling way, where the initial district court ruling saying, clearly, that monkeys don't get a copyright would get deleted. Not everyone was comfortable with this settlement and some concerns have been brought before the court. As of writing this, the court seems to be sitting on the matter.

We knew exactly why PETA didn't want its big loss to remain on the books, but it initially appeared that Slater was more neutral. However, he's now claiming that he's preparing to sue Wikipedia -- in which case having the earlier ruling off the books (where it makes it clear that a monkey can't get a copyright) would probably be helpful. This bit of news about a planned Wikipedia lawsuit was a throwaway line in... well... a pretty bad episode of This American Life, which takes on the monkey selfie story, but does a surprisingly awful job of it. I'm a huge fan of This American Life, and in the past when they've done stories where I'm intimately familiar with the details, I think they've done a really excellent job.

But, on this story, TAL falls flat on its face. It presents the story of David Slater mostly through his own telling of it, and frames Wikipedia declaring the image to be in the public domain to be a fairly radical position. I'm actually surprised that TAL didn't talk to a copyright lawyer about this (they quote Slater's lawyer, but specifically on questions related to PETA's case -- and not the copyright status of the image). Indeed, I'm surprised that the reporter, Dana Chivvis, didn't appear to speak to anyone at Wikipedia itself. She kicks off the discussion of Wikipedia's role in the monkey selfie case with this bit of utter nonsense that does not reflect Wikipedia's view at all:

In other words, anyone could use it, without David's permission, for free. To David, that was just stealing. He makes a living from selling his pictures, so it was really helpful to have one that was such a hit. But now, anyone could download it from Wikipedia and hang it on their wall. Or print it in their publication.

Wikipedia's opinion is that information on the internet should be free.

Where to start? This is just so full of wrong, it's embarrassing. Whether or not Slater makes his living from that photo has no bearing on the legal question of who holds the copyright. And Wikimedia's reason for declaring the monkey selfie in the public domain is not that "information on the internet should be free." Its position is that the law is well established that non-human creators don't get copyright, and thus the image is in the public domain. This isn't some crazy "ooh man, everything should be free" argument. It's a legal argument based on the entire history of copyright law. While (thankfully!) Slater and/or TAL left us out of this story (Slater frequently blames us in combination with Wikipedia for the sin of accurately reporting on the law, but somehow we got spared in this story), it does a terrible job presenting the actual legal arguments about the public domain question. Wikipedia does support making knowledge available to the public, but that's unrelated to the legal question of whether the image is in the public domain -- but the way Chivvis presents it, it's as if Wikipedians just randomly declare images in the public domain because they think everything online should be free. That's wrong. And it's just bad reporting.

Chivvis does do a much better job getting into the legal issues with PETA's dumb lawsuit and accurately presenting the issues at play there, but that's a separate issue from whether or not the image is in the public domain (even if the issues are somewhat entangled). She also leaves out the key part of the settlement being a desire to delete the original ruling in the case -- or the fact that the court does not appear to have accepted the settlement, and the case is technically still open (she claims that it's all settled).

There is just a quick aside about Slater's plan to sue Wikipedia at the end, right before the supposed "kicker" to the story: Slater claims that "Naruto" -- the monkey PETA claims it represents and who it claims took the photo -- is not, in fact, the monkey who took the selfie. This isn't a new argument, as it's been raised before (by Slater and others) that Naruto is the wrong monkey.

Either way, suing Wikipedia for accurately claiming the monkey selfie image is in the public domain would not be a wise move on Slater's part. He's almost certain to lose if it goes that way. He's also threatened to sue us in the past over this same issue, and that would be even dumber (again: we just reported on the copyright status of an image based on his own statements about how the image came to be -- he has since changed his story to make it appear that he had more of a role in the photo, but that was not his original story at all). Note that in original story, Slater said he left the camera "unattended" and the camera "attracted the attention" of a macaque. It was only later, after people pointed out that under those conditions, he doesn't have a copyright that the story began to morph into one where Slater had a bigger role (which is also heard in the TAL broadcast).

Either way, Slater continues to tilt at this windmill, and it's not going to change the law. PETA's lawsuit was dumb and hopefully it really is over (though, hopefully the original ruling remains on the books). I really feel sorry that PETA decided to pick Slater as the victim of one of its stunts as it's a shitty experience to be sued. But for Slater to think the lesson to take from all of this is to sue others would be disappointing.


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  • identicon
    Baron von Robber, 14 Nov 2017 @ 9:46am

    When did Naruto pass the bar and start representing David Slater?

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

  • identicon
    Anonymous Coward, 14 Nov 2017 @ 9:51am

    November 2027:

    "I took that... I should have the copyright to that monkey selfie" slurs David Slater as the bartender nods politely, though doesn't ask to refill his drink even as the glass sits empty.

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

  • identicon
    Machin Shin, 14 Nov 2017 @ 9:56am

    What I want to know is why I don't see this monkey picture attached?

    It should be proudly displayed in every story about it. (Because it is an awesome picture, and it will make that idiot even more mad)

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

  • icon
    tom (profile), 14 Nov 2017 @ 10:05am

    In my mind, the monkey in the picture IS Naruto. It is far more fun to imagine that PETA has wasted years and money representing a monkey that has no standing(assuming of course, that ANY monkey can have standing) because they identified the wrong monkey as the real Naruto.

    In any other reality, news stories about monkeys suing over copyright would be "Fake News". Sadly, we are not in one of those realities.

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

    • icon
      The Wanderer (profile), 15 Nov 2017 @ 9:16am

      Re:

      I always understood that the name "Naruto" came to this case out of PETA's claim, and that PETA were claiming that that was the name of the relevant monkey.

      The only way I cank think of by which a "the wrong monkey" assertion could make sense is if the name had been applied to the monkey in the photograph, and the photograph had been actually taken by a different monkey - but that's also not what I remember seeing stated to have been the case, in the entire history of covering this.

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

    • icon
      Jeremy Lyman (profile), 15 Nov 2017 @ 11:16am

      Re:

      You mean they didn't get a notarized consent form from the monkey in question? Shocking.

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

  • icon
    Roger Strong (profile), 14 Nov 2017 @ 10:10am

    It was only later [...] that the story began to morph into one where Slater had a bigger role

    "There was no collaboration. Fake news from the failing Wikipedia. Sad."

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

  • identicon
    Anonymous Coward, 14 Nov 2017 @ 10:18am

    Have the lawyers made more money that that photo is worth yet?

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

  • identicon
    Anonymous Coward, 14 Nov 2017 @ 10:24am

    Don't worry, Mike, the saga will end 70 years after the monkey has passed away. (Unless he has any relatives that will push for copyright extension.)

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

  • icon
    That One Guy (profile), 14 Nov 2017 @ 10:31am

    Some legacies are better than others

    He could have been remembered as a nature photographer, but that was too dull.

    He could have been remembered as the person who owned the camera the 'monkey selfie' was taken on, but fame like that would have faded from view far too quickly.

    He could have been remembered as someone lucky enough to be in the right place at the right time for a one-in-a-million shot to be taken using his gear, but dumb luck is just too tame.

    No, instead he's going to be remembered as the guy who decided that threatening people for using a photo in the public domain was a good idea.

    He'll be remembered as the guy sued by PETA, who claimed to be bringing the lawsuit against him on behalf of a monkey.

    He'll be remembered as the guy who is apparently such an atrocious photographer that the copyright status of one picture is enough to make or break his entire career, to the point that he's willing to go on a multi-year crusade to 'protect' it from the vile 'public domain'.

    He could have been remembered for any number of things, but given his obsessive fixation on the status of a single photograph I'm pretty sure he's just going to be remembered for behavior that would make even a drunk monkey look mature by comparison.

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

    • identicon
      Anonymous Coward, 14 Nov 2017 @ 11:04am

      Re: Some legacies are better than others

      He'll be remembered as the guy who is apparently such an atrocious photographer that the copyright status of one picture is enough to make or break his entire career,

      Apparently even a monkey can take better pictures than he does.

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

    • icon
      AnonJr (profile), 14 Nov 2017 @ 12:31pm

      Re: Some legacies are better than others

      Good thing it wasn't a photo of a white whale, that would have been too on-the-nose...

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

      • identicon
        Anonymous Coward, 15 Nov 2017 @ 8:35pm

        Oooh, look! A 12 year-old account: AnonJr!

        All of 30 comments since 21 Dec 2007; 3 year gap after first, then 4 year gap to 2015! Though more recently!

        UNBELIEVABLE accounts just keep crawling out. It's Tech Of The Dead.

        One doesn't prove ODD? Check out this one fairly active recently, but has two gaps each about 18 months, and only 19 comments in 8 years!:
        https://www.techdirt.com/user/jdrwho

        Or this one having only 43 comments going back to 9 Jul 2009 with a FIFTY-FOUR month gap from 2010!
        https://www.techdirt.com/user/teknosapien

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

        • identicon
          Anonymous Coward, 15 Nov 2017 @ 8:41pm

          Re: Oooh, look! A 12 year-old account: AnonJr!

          Meanwhile you have actually dead people trying to fight against net neutrality.

          Nice try, out_of_the_blue. You fail.

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

        • icon
          That One Guy (profile), 15 Nov 2017 @ 10:48pm

          As entertaining as it is watching you wildly flail about spinning conspiracy theories about 'dead' accounts rising from the grave(even more entertaining is that you think anyone but you cares), you probably should see a psychiatrist about that.

          Obsessively checking post history is veering very close, if not into obsession/stalker territory, and is not a normal thing.

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

        • icon
          PaulT (profile), 16 Nov 2017 @ 1:57am

          Re: Oooh, look! A 12 year-old account: AnonJr!

          One amusing thing about you being an obsessive idiot is you attacking other people for supposed shady behaviour while refusing to offer people the chance to check your own. Posting as an AC while questioning the logins of others?

          Why are you afraid to have your comment associated with an account? Which account are you neglecting right now in the way you find so suspicious when others are doing it? Should we find it suspicious when you finally bother logging in again, or do you just find the history of your posting there too embarrassing, even though regulars can guess which ones they are?

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

    • identicon
      Anonymous Coward, 14 Nov 2017 @ 6:17pm

      Re: Some legacies are better than others

      Hang on a minute... are you talking about the monkey or the photographer? Cause we're going to remember the monkey.

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

    • icon
      nasch (profile), 14 Nov 2017 @ 8:24pm

      Re: Some legacies are better than others

      I doubt he'll be remembered at all.

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

  • identicon
    Whoever, 14 Nov 2017 @ 10:44am

    Photo booths

    There are two issues at stake here:
    1. Can monkeys own a copyright?
    2. If monkeys can own a copyright, does the monkey in question own the copyright on the photo?

    For question 2, consider a photo booth. The company operating the booth sets up the camera, but the people using it initiate the taking of the photo and arrange themselves. This is exactly what happened with the monkey photos.

    So, if you use a photo booth, does the company operating the booth own the copyright on any photos produced by the booth?

    That's the argument that the photographer is making. He set up a booth, the monkeys pressed the button to get the camera to take photos and they made faces at the camera. That's exactly what happens in a photo booth.

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

    • identicon
      Anonymous Coward, 14 Nov 2017 @ 10:55am

      Re: Photo booths

      The people in the photobooth setup the shot and decided when to initiate the taking of pictures. That is what a photographer does so I'd say the people in the booth hold the copyright.

      The company owning the booth cannot claim copyright because they did nothing artistic such as setting up the frame, selecting the subject to photograph, initiating the photograph, etc. The photobooth is basically a camera that you can rent for a limited time.

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

    • identicon
      Anonymous Coward, 14 Nov 2017 @ 11:11am

      Re: Photo booths

      Anyone seriously still asking those questions is not much smarter than Slater.

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

    • icon
      That One Guy (profile), 14 Nov 2017 @ 11:24am

      Re: Photo booths

      No, monkeys cannot own a copyright, as covered by an earlier article on the subject which pointed out that the copyright office listed a 'human authorship requirement' for copyright, and one of the examples they used for pictures which didn't qualify for copyright was... you guessed it, 'A photograph taken by a monkey'.

      That's the argument that the photographer is making. He set up a booth, the monkeys pressed the button to get the camera to take photos and they made faces at the camera.

      That might be the argument he's making now, but as I understand it his story changed over time(likely due to someone pointing out that his original explanation of events meant he had no copyright), from 'it was a complete accident' to 'I set up the camera and made several creative decisions'.

      The funny thing of course is that the photo is only of interest in the former case, there are countless photos taken of monkeys, such that another isn't particularly of value. A photo taken by a monkey on the other hand is much more interesting, yet the method of it's creation means that it's in the public domain, where it can still be sold and/or used, just not exclusively.

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

    • icon
      Matthew Cline (profile), 14 Nov 2017 @ 9:07pm

      Re: Photo booths

      So, if you use a photo booth, does the company operating the booth own the copyright on any photos produced by the booth?

      That's the argument that the photographer is making.

      No, his argument is more along the lines of "the copyright has to belong to someone. Normally it would belong to whoever presses the button, if it can't belong to them then the copyright passes to the owner of the booth".

      Not saying that argument is correct.

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

      • identicon
        David, 15 Nov 2017 @ 4:14am

        Re: Re: Photo booths

        But the argument is consistent with what lobbyists have been paying bribes to lawmakers for for centuries.

        It is consistent with the "Intellectual Property" mantra that anything of value with existence linked with a human or other legal entity can only be exploited/copied according to conditions set by that legal entity in all perpetuity.

        That's not what copyright says. Or patents. Or trademark law. But it's what gets pounded into every one of us all of the time.

        Culture, common knowledge of civilization is an abomination and should be abolished. And all the corporations are chipping at it all the time, and successfully so.

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

      • icon
        Jeremy Lyman (profile), 15 Nov 2017 @ 11:31am

        Re: Re: Photo booths

        Yes all these arguments center around the idea that "everything must belong to someone" which is explicitly countered in the U.S. Constitution's Copyright Clause. ALL "Writings and Discoveries" MUST after "limited Times" belong to NO ONE.

        No one, and everyone. It's like beautiful, man.

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

    • icon
      John85851 (profile), 15 Nov 2017 @ 9:52am

      Re: Photo booths

      Going by your logic, there's a third issue at stake:
      3) If monkeys can own a copyright by clicking a button, can other animals? If put my phone in front of my cat and she hits the button to take a selfie, does she own the copyright?
      If not, then why does a monkey get to own a copyright but not a cat?

      And how far are we willing to extend this argument? Suppose a nature photographer puts a camera in a forest and the shutter is triggered by ants. Do the ants own the copyright? Or do we know have to argue "intent": the monkey and cat were curious and pressed a button, but the ants didn't do it on purpose.

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

  • identicon
    Anonymous Coward, 14 Nov 2017 @ 11:26am

    Work for hire.

    Why doesn't Slater say that he hired the monkey and that it is was a work for hire, so that way he get's the copyright?

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

  • identicon
    Anonymous, 14 Nov 2017 @ 11:26am

    If the law is and always was clear, Slater's mooted lawsuit will be thrown out before trial. And yet this article seems to admit it would not, and so it will go to trial. Even the Wikipedian's admit their position is only theoretical, unless or until a court judgement is handed down. That is how copyright works, after all, as you will see them saying in any disputed case which doesn't have a cast iron precedent they can call on.

    The reporter accurately reflected the position of the wikipedians in this case. Any information that they, in their unqualified opinion, is free, should be widely distributed. It falls to the people who potentially lose out if they get it wrong, to dispute their judgement. Wikipedia's own lawyers stay away from the issue completely, as they know all too well how often their volunteer's enthusiastic approach to free culture, clouds their judgement.

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

    • icon
      That One Guy (profile), 14 Nov 2017 @ 11:54am

      Re:

      'Stupid lawsuit' does not automatically translate to 'quickly dismissed lawsuit'(if only...). The PETA vs Slater lawsuit for example lasted two years, and that was a lawsuit where one side claimed to be legal representation of a monkey.

      Even the Wikipedian's admit their position is only theoretical, unless or until a court judgement is handed down.

      Which is exactly what happened.

      That is how copyright works, after all, as you will see them saying in any disputed case which doesn't have a cast iron precedent they can call on.

      Cast iron precedent like say, the Copyright Office making explicitly clear that a photograph taken by a monkey is not covered by copyright?

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

    • identicon
      Anonymous Coward, 14 Nov 2017 @ 4:16pm

      Re:

      Yes, it's definitely everyone else whose judgement is clouded.

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

  • identicon
    Stosh, 14 Nov 2017 @ 12:30pm

    Looking at the what is passed off as news photos and writing today and convince me a monkey isn't in charge....

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

  • identicon
    Anonymous Coward, 14 Nov 2017 @ 2:03pm

    It's past time we stop referring to Slater as the monkie selfie photographer. He didn't take the picture, so he should be referred to as the monkie selfie exploiter.

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

  • identicon
    Corn Farmer, 14 Nov 2017 @ 2:25pm

    Thanks to the cases reported on Techdirt,

    my popcorn shares are going gangbusters.

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

  • icon
    Mononymous Tim (profile), 14 Nov 2017 @ 2:44pm

    So much jackassery about one monkey.

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

  • icon
    orbitalinsertion (profile), 14 Nov 2017 @ 3:22pm

    Look mommy, it's a shambling, sputtering dumpster fire of tires and oily rags.

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

  • identicon
    Pixelation, 14 Nov 2017 @ 5:25pm

    The real monkey

    Slater should just start flinging poo. He'll probably have better results.

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

  • identicon
    Anonymous Coward, 14 Nov 2017 @ 5:40pm

    "Wikipedia's opinion is that information on the internet should be free (as in freedom)."

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

    • identicon
      carlb, 14 Nov 2017 @ 6:52pm

      Wikipedia?

      Wikipedia already *is* an infinite number of monkeys with typewriters, all tapping away on the assumption that some day they will manage to produce the complete works of Shakespeare and every book in la Bibliothèque de France.

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

  • identicon
    Anonymous Coward, 14 Nov 2017 @ 8:39pm

    It strikes me as quite odd just how little consideration has been given to which national law controls with respect to copyright. While virtually all counsel well-versed in US copyright law agree that if US law was deemed controlling the photo would likely be deemed in the public domain based upon the facts publicly disclosed, it is not at alll clear that the same result as US law would result by the application of Indonesian law, UK law, or whatever other foreign law may be deemed to control. Depending upon how such laws define how and when a copyright in a work first arises, it is possible that the photographer asserting a claim to copyright in the photo may have a valid claim.

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

    • icon
      That One Guy (profile), 14 Nov 2017 @ 9:33pm

      Re:

      That was actually discussed way back in the mists of time, in 2011, which should give you an idea how long this insanity has been going on. The tl;dr version is that whether under US, UK or Indonesian law, his case isn't any stronger.

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

    • icon
      Talmyr (profile), 15 Nov 2017 @ 4:44am

      Re:

      And of course, if it may vary by jurisdiction, all these cases are being held and dealt with in the US, so using US law, which is clear on the matter.

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

      • identicon
        Anonymous Coward, 15 Nov 2017 @ 6:08am

        While US copyright law appears to have been used in the case initiated by PETA, that was almost certainly a mistake. The two bodies of law that are most likely in closest contact to the copyright issue appear to be UK and Indonesia law. I have not found any analysis of the issue under Indonesia law, but I have read at least one analysis under UK law that concluded the photographer posssibly had a valid copyright claim.

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

  • icon
    That Anonymous Coward (profile), 14 Nov 2017 @ 10:19pm

    Perhaps Dana Chivvis isn't so much of a reporter as a parrot for a paycheck.

    So I went looking... and well.

    https://www.thisamericanlife.org/radio-archives/episode/631/so-a-monkey-and-a-horse-walk-into-a -bar?act=1

    Photo David Slater/Caters News Agency

    Covering the photo at issue, appears at the bottom.
    Could this be considered copyfraud, since he did not take the photo and doesn't hold the copyright?

    Never let the truth get in the way of a big story about the evil huge wikipedia stomping on the small guy, and ignore all of the insanity of the truth.

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

  • identicon
    darren squires, 14 Nov 2017 @ 10:56pm

    peta lioking less crazy

    If he really thinks that he has a claim to copyright, even though the law says clearly he doesnt, then he really deserved his legal spat with PETA. After all, they were doing the same.

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

  • identicon
    Anonymous Coward, 15 Nov 2017 @ 12:23am

    Lord of Mercy, the only humane thing to do is put him down. Not the Monkey.

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

  • identicon
    Anonymous Coward, 15 Nov 2017 @ 3:46am

    what I never understood

    was why the person who owned the pile of bits that could be arranged with other piles of bits into a display of a monkey selfie didn't release a low-res version of the monkey selfie and licence the high res version out? Piles of bits are a thing themselves, heck its why a scan of a public domain thing can have its own copyright.

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

  • icon
    David Muir (profile), 15 Nov 2017 @ 7:01am

    The whole thing started with Slater himself. He was the one that first explained how amazing it was that the monkey spontaneously picked up the camera and took the picture all on its own. Slater later tried to shift the description of the event as having been "orchestrated" by him. I view the whole legal kerfuffle as a strange "he said/he said" argument with himself. On the other hand, I haven't followed all the permutations of the details over the entire epic saga.

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

  • identicon
    EngineerZ, 15 Nov 2017 @ 7:22am

    Everything must come to an end.

    Thought the monkey selfie saga was over? I'm beginning to think that it will never, ever, be over.

    Come on now, every farcical legal saga must come to an end. Take the SCO-IBM debacle for example... Um... What did you say? Aw crap... Nevermind.

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

  • identicon
    Anonymous Coward, 15 Nov 2017 @ 1:43pm

    Why doesn't the monkey register an account on Wikipedia and ask for file deletion?

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

  • identicon
    Anonymous Coward, 30 Nov 2017 @ 11:20am

    Am I the only one that feels like Techdirt and Wikimedia are totally in the wrong? Is the writer of this article being disingenuous or ignorant about the creation of art and what makes someone the author? It wouldn't even matter if the camera was unattended. Is it because we all have cameras on our phones that we don't understand how a picture like this is created? Slater chose the lens. He set the camera up in a specific place, considering light and background. He also set the aperture and shutter speed. The monkey then played with a button that Slater hoped he would play with to make the camera go off. Of course Slater is the author of the photograph.

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

    • icon
      nasch (profile), 30 Nov 2017 @ 12:34pm

      Re:

      Am I the only one that feels like Techdirt and Wikimedia are totally in the wrong?

      If you're David Slater maybe. If not, then it's at least the two of you.

      Slater chose the lens. He set the camera up in a specific place, considering light and background. He also set the aperture and shutter speed.

      But not with this photograph in mind. Imagine that the camera was brand new. The only person who had done anything with the settings was a QA technician named Bob at the manufacturer. He adjusted settings to make sure everything worked, then put the camera in a box. Later the camera is unpackaged, set on the ground, and the monkey takes a photo. You're saying Bob owns the copyright?

      Slater had no intention for the monkey to take the photo, and no idea that it might. He has no role of authorship in it, only ownership of the camera. And as far as copyright is concerned, that means nothing.

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

      • identicon
        Anonymous Coward, 30 Nov 2017 @ 1:14pm

        Re: Re:

        I'm not David Slater, but I have a little knowledge about how a picture like this is achieved. Bob at the manufacturer doesn't set aperture or shutter speed. He doesn't choose a lens for the body of the camera. Let me put it this way, which for me gets more to the heart of the issue: If someone makes a movie that is all in one shot, does the camera operator own the copyright for that movie?

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

        • icon
          nasch (profile), 30 Nov 2017 @ 1:34pm

          Re: Re: Re:

          If someone makes a movie that is all in one shot, does the camera operator own the copyright for that movie?

          If he doesn't sign a contract indicating that it is a work for hire, yes.

          https://www.copyright.gov/circs/circ09.pdf

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

          • identicon
            Anonymous Coward, 30 Nov 2017 @ 2:29pm

            Re: Re: Re: Re:

            I appreciate you engaging me on this. I think there's still an argument, but I don't think it would serve anybody for me to try to make it here. I find your position morally repugnant, but I really am grateful for your perspective. Now I can see why it's even a debate. We have laws because we can't expect everyone to do the right thing. How can I expect people won't game the system to get out of doing the right thing?

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

            • icon
              nasch (profile), 30 Nov 2017 @ 2:33pm

              Re: Re: Re: Re: Re:

              I think there's still an argument, but I don't think it would serve anybody for me to try to make it here.

              Of course... we should just assume you have a really excellent argument you're choosing not to make then?

              I find your position morally repugnant

              You find it morally repugnant to understand the correct meaning of copyright law? How interesting, I did not expect that.

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

              • identicon
                Anonymous Coward, 30 Nov 2017 @ 2:42pm

                Re: Re: Re: Re: Re: Re:

                No, it's morally repugnant that you would think something is okay just because you can do it, and not because it's the right thing to do. Because I'll bet you don't think a camera operator deserves the copyright to a movie.
                But I'm really not trying to troll you or start an argument. I appreciate you giving me a strong, rational position on the other side.

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

                • icon
                  nasch (profile), 1 Dec 2017 @ 8:00am

                  Re: Re: Re: Re: Re: Re: Re:

                  No, it's morally repugnant that you would think something is okay just because you can do it, and not because it's the right thing to do.

                  I've been responding to things you actually wrote; perhaps you could extend me the same courtesy.

                  Because I'll bet you don't think a camera operator deserves the copyright to a movie.

                  If a camera operator signs a contract that says it's a work for hire and he doesn't get the copyright, then no I don't think he deserves the copyright. Do you?

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

                  • identicon
                    Anonymous Coward, 1 Dec 2017 @ 9:55am

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    No, taking out the question of contracts: I don't think the camera operator ever deserves the copyright to a film. Do you?

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

                    • icon
                      nasch (profile), 1 Dec 2017 @ 10:25am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      I assume you're talking about morally, not legally. At the risk of sounding wishy washy, it depends. If he's just showing up for work and his work happens to be operating a camera, no. If he has substantially more involvement in the making of the movie than that, it's possible he deserves some copyright interest.

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

        • icon
          PaulT (profile), 1 Dec 2017 @ 1:58am

          Re: Re: Re:

          "Bob at the manufacturer doesn't set aperture or shutter speed. He doesn't choose a lens for the body of the camera"

          If it's a compact camera rather than a DSLR, he sure as hell does. Does the type of camera somehow change the argument?

          "If someone makes a movie that is all in one shot, does the camera operator own the copyright for that movie?"

          No, because there's a lot of people involved in setting up what's in front of the camera as well. That's an idiotic comparison, the polar opposite of capturing a shot in nature such as the one in the discussion.

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

          • identicon
            Anonymous Coward, 1 Dec 2017 @ 9:52am

            Re: Re: Re: Re:

            What I think is being overlooked by most people here is that these are photographs worthy of a copyright dispute. They're great looking pictures that can be blown up and can be put into a book. They're pictures that people want to use on the Internet. They're professional photographs. Those photos only exist because this photographer hauled all his gear out into the jungle, and at bare minimum put a high quality lens that works for portraits and chose settings that would make the picture look good. I hope someone runs an experiment where they leave a camera with some monkeys to see if they come out with something like those photos. Slater is also the reason we even see the photographs. If the picture taking had stopped at the monkeys pushing the button, the actual photos that we're talking about wouldn't exist.

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

            • icon
              Gwiz (profile), 1 Dec 2017 @ 11:07am

              Re: Re: Re: Re: Re:

              They are absolutely great photos, but that doesn't change the fact that they are not copyrighted. If you wish to support Slater, then by all means purchase them from him. No one is stopping you. The photos being in the Public Domain doesn't mean Slater cannot sell them, it just means that he doesn't have an exclusive right to sell them or the ability to control anyone else selling them or using them.

              The quality of a work has no bearing on whether the work is legally under copyright. For example take George A. Romero's Night of the Living Dead (1969) film, because of a mistake, no copyright notice appeared on the released film (which was required under copyright law at the time) so the film immediately entered the Public Domain.

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

            • icon
              PaulT (profile), 2 Dec 2017 @ 1:41am

              Re: Re: Re: Re: Re:

              "Those photos only exist because this photographer hauled all his gear out into the jungle, and at bare minimum put a high quality lens that works for portraits and chose settings that would make the picture look good"

              ...and the monkey came along and push the button at just the right time to capture the look and subject that make them appealing. There's a lot of factors here, some of them have nothing to do with the photographer's choices. They were random chance, caused by the monkey.

              "If the picture taking had stopped at the monkeys pushing the button, the actual photos that we're talking about wouldn't exist."

              ...and if the monkey hadn't pressed the button at the exact moment he did while he was in the frame in that specific way, they wouldn't exist either.

              I know you're desperate for the photographer to be the only factor here, but he really, really isn't.

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

    • icon
      Gwiz (profile), 30 Nov 2017 @ 12:54pm

      Re:

      Is the writer of this article being disingenuous or ignorant about the creation of art and what makes someone the author?

      No, the writer has based his opinion on actual copyright law, which states in general, when the shutter is released, the photographer who pressed the button owns the copyright.

      For example, if you ask a stranger to take a photo of you and your wife on vacation with your camera the copyright actually belongs to the stranger.

      Copyright law also states that copyrights can only be held by legal persons—which an animal is not.

       

      Slater chose the lens. He set the camera up in a specific place, considering light and background. He also set the aperture and shutter speed. The monkey then played with a button that Slater hoped he would play with to make the camera go off.

      Did you read the whole article? Slater is the one being disingenuous and dishonest here. In his original interview concerning the monkey selfie Slater states that it was all an accident after "This critically endangered macaque monkey took his own photographs after grabbing a camera that had been left lying around".

      After Slater realized that legally there was no copyright on the photos the monkeys took, he started changing his story.

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

      • identicon
        Anonymous Coward, 30 Nov 2017 @ 1:24pm

        Re: Re:

        The thing that bothers me the most is the misunderstanding about the author of a piece of work. The law doesn't say that whoever presses the button is the person who owns the copyright. It says the "author" of the image is entitled to own it. I don't agree that the person or animal that manipulated the machine to capture the art is the author of that piece of art, and I think if you do you are being willfully ignorant.

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

        • icon
          nasch (profile), 30 Nov 2017 @ 1:57pm

          Re: Re: Re:

          The law doesn't say that whoever presses the button is the person who owns the copyright.

          "In general, when the shutter is released, the photographer who pressed the button owns the copyright." -Carolyn E. Wright of photoattorney.com, an attorney and professional photographer

          https://blog.kenkaminesky.com/photography-copyright-and-the-law/

          "Under U.S. law, copyright in a photograph is the property of the person who presses the shutter on the camera — not the person who owns the camera, and not even the person in the photo." - Donna M. Ruscitti, attorney

          https://www.technologylawsource.com/2015/04/articles/intellectual-property-1/who-owns-the-p hoto/

          "As a general rule, the owner of the copyright in a photographic work is the person that takes the photograph." -David Kluft, intellectual property attorney

          http://www.trademarkandcopyrightlawblog.com/2017/08/who-owns-the-copyright-in-the-photograp h-that-launched-a-thousand-pleadings/

          OK your turn. Do you have any sources showing why all these lawyers misunderstand the authorship of photographs?

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

        • icon
          Gwiz (profile), 30 Nov 2017 @ 4:55pm

          Re: Re: Re:

          The law doesn't say that whoever presses the button is the person who owns the copyright. It says the "author" of the image is entitled to own it.

          Yes, U.S. Code Title 17 refers to the "author" or "authors" of a work, but decades of court decisions have already established that the "author" of a photograph is the human person pressing the shutter button.

           

          I don't agree that the person or animal that manipulated the machine to capture the art is the author of that piece of art,...

          I'm sorry that you don't agree with something that has already been established as legal precedent.

           

          ...and I think if you do you are being willfully ignorant.

          No, I'm just trying to help you understand this issue a little better.

          Here's a blog post from an actual copyright lawyer who works mainly with photographers that does a pretty good job of explaining this stuff:

          https://blog.kenkaminesky.com/photography-copyright-and-the-law/

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

          • identicon
            Anonymous Coward, 1 Dec 2017 @ 12:13pm

            Re: Re: Re: Re:

            I really appreciate the info. I am not very familiar with copyright law, and I shouldn't have acted like I was. I do think an exception could be made in this particular case, since the legal precedent was set to protect human artists. But there's a reason Slater still hasn't filed suit.
            I still think Slater is the author of photograph, whether he could win in court or not. I think there's also a disconnect on what I mean by wrong. When I said Techdirt and Wikimedia are in the wrong, this is what I meant: If you were to ask Mike or Jimmy if Slater deserves to get paid for it, they'd probably shrug and say, "Meh, who am I to decide who deserves anything." But they're doing it because they can, because the current copyright law is worded in such a way that they feel like they're protected legally. I think using the law to screw somebody over is messed up, so I think they're wrong.

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

            • icon
              Gwiz (profile), 1 Dec 2017 @ 1:15pm

              Re: Re: Re: Re: Re:

              I do think an exception could be made in this particular case, since the legal precedent was set to protect human artists.

              Not really. The purpose of copyright has never been about protecting artists, it's "To promote the progress of science and useful arts". The means we use is by giving artists exclusive rights for a limited time. When copyright laws were first written "limited time" meant 14 years with an option to renew for another 14 years. After that the work belonged to everyone. The idea originally was to give artists a small amount of time of exclusivity, but eventually the works would be in the Public Domain to enrich society as a whole.

               

              But they're doing it because they can, because the current copyright law is worded in such a way that they feel like they're protected legally.

              I'm not really sure about Wikipedia, but I can say that Techdirt's use of the images is perfectly legal, even if the photos were copyrighted. Techdirt used the photos in articles about the photos themselves. It's perfectly reasonable to do so and in fact is legally covered under copyright's Fair Use doctrine. Fair Use is the safety valve that helps keep copyright from infringing on the First Amendment right to Free Speech by allowing one to critique or comment on a work (and include the work or a portion of the work so the audience will know what you are talking about) without having to ask permission from the artist.

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

            • icon
              PaulT (profile), 2 Dec 2017 @ 1:44am

              Re: Re: Re: Re: Re:

              "I am not very familiar with copyright law, and I shouldn't have acted like I was."

              It's great that you admit that. But, given that admission, why do you insist on telling people who clearly have a greater understanding that they are wrong?

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

  • identicon
    timbered, 25 Apr 2018 @ 6:17pm

    Both ways

    Those who think this photo is in the public domain are trying to have it both ways.

    If, as you think, an entity (here an animal) can't hold the copyright, then that entity can't be considered the artistic content creater either. You can't say that one part of copyright law applies (the monkey is the artist) while saying copyright law can't apply to him because he's an animal.

    The photographer, who owns the camera and used an artistic creative process that resulted in the photo, owns the photo.

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

    • icon
      nasch (profile), 25 Apr 2018 @ 8:10pm

      Re: Both ways

      If, as you think, an entity (here an animal) can't hold the copyright, then that entity can't be considered the artistic content creater either.

      As far as copyright law is concerned, there is no artistic content creator. That's because under copyright law only humans can be content creators.

      The photographer, who owns the camera and used an artistic creative process that resulted in the photo, owns the photo.

      If he had in fact used an artistic creative process to create the photo he would own the copyright. However what happened is he left his camera laying around and a monkey found it.

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

      • identicon
        timbered, 25 Apr 2018 @ 10:44pm

        Re: Re: Both ways

        And that's my point. The legal phrase is "but for the actions of..."

        If the human had set up a gun instead of a camera, and the animal shot itself, he would be criminally prosecuted, because the animal would be alive "but for the actions of..."

        If the photographer hadn't set up the camera, traveled there, assembled it, whatever, "but for the actions of" the photographer, the photo wouldn't exist. The courts can work out how much each (monkey, photographer) is responsible for, but I find the augment that the monkey is 100% and photographer is 0% responsible a hard legal argument to make.

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

    • icon
      PaulT (profile), 26 Apr 2018 @ 12:12am

      Re: Both ways

      You seem confused as to what the public domain is, and how it's defined.

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

      • identicon
        timbered, 26 Apr 2018 @ 3:57am

        Re: Re: Both ways

        I doubt that.

        How so?

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

        • icon
          PaulT (profile), 26 Apr 2018 @ 4:07am

          Re: Re: Re: Both ways

          "The legal term public domain refers to works whose exclusive intellectual property rights have expired,[1] have been forfeited,[2] have been expressly waived, or are inapplicable.[3]"

          https://en.wikipedia.org/wiki/Public_domain

          People aren't "having it both ways" by applying the term public domain, they're using it by its correct definition. If copyright is not applicable to the work, as has been judged in this case, then it's public domain.

          It's very simple - legally, the author of the work was the monkey, not the photographer. Legally, copyright cannot be held by a monkey. Therefore, copyright is inapplicable and it's public domain.

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

          • identicon
            timbered, 26 Apr 2018 @ 5:31am

            Re: Re: Re: Re: Both ways

            "...legally, the author of the work was the monkey..."

            Legally? Since when? What court decided that? Answer: NONE

            Anyway, here are a few other takes on the matter:

            To the "Monkey picked up the camera argument:" The monkey made the photo. Since he is not a person he cannot own the copyright. He then abandoned the camera, which makes the image an "orphaned work." The photographer then took the image and edited it, which gives him the copyright since it is a work of art derived from another that he had the right to use.

            To the "The monkey pushed the button argument:" Are all photos taken with a self timer not copyrightable? Time lapse photography? When GoPros are thrown up in the air? How about satellite images?

            To "The monkey was the creator and therefore the photo is in the public domain:" I would suggest that the photo as now presented looks far different than the original raw image the camera recorded. Unless the photographer release the camera RAW image, he had an artistic hand in the creation of the photograph we are seeing. Only the image as captured fits that.

            Also, If I take 20 public domain photos and combine and make them into a piece of art – that art is my work and I own it.

            Or, if the law says the monkey doesn’t count as a creator then the point at which the photo was taken isn’t the point at which a work was created. The photographer effectively created the work at the point he processed the image. At that point a chance occurrence became a work. The work was created by the photographer because the monkey is incapable of creating a work. Effort was expended by the photographer in the production of the work both before and after the monkey’s involvement.

            Google the copyright discussions regarding that photo taken at the Oscars that was tweeted by Ellen D... The issue of who owns that photo is still up in the air.

            Mind you, my only "friend of the court" interest in this is that Wikipedia is using the photo for free, which I find specious at best. That is why I posted my original comment in this thread re: the Wikipedia lawsuit, and not the others on this site having to do with the same photo.

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

            • icon
              PaulT (profile), 26 Apr 2018 @ 6:00am

              Re: Re: Re: Re: Re: Both ways

              Brush up on facts, please. You've had 6 months since the article you're commenting on was written to gather them. Every tired argument you're trying to make has been made by many others before you, and the court has sided with the idea that this photo cannot be copyrighted, and is thus public domain. The monkey is the legal author and he cannot legally hold copyright.

              The other questions you pose are similarly tired, but they have nothing to do with the fact that this picture is public domain, according purely as per the definition of the term. Your attempt to attack others has failed.

              Try this for a primer, since you've chosen to be wilfully ignorant of the history here:

              https://en.wikipedia.org/wiki/Monkey_selfie_copyright_dispute

              "Also, If I take 20 public domain photos and combine and make them into a piece of art – that art is my work and I own it."

              Yes, but each work remains in the public domain, only the new work you have compiled will have copyright. The works are free for you and any member of the public to use as they wish, as is its entire purpose, whether or not you like what has entered that status.

              "The work was created by the photographer because the monkey is incapable of creating a work"

              No, he's absolutely capable of creating a work, he's just not legally able to hold the copyright for it. Had a small child activated the camera in the same way, that child would hold the copyright, not the photographer. Similarly, had Naruto held a paintbrush and created a work that way, he would legally be the author and not whoever bought the brush.

              "Mind you, my only "friend of the court" interest in this is that Wikipedia is using the photo for free"

              As is their legal right for any image that's in the public domain. I'm sorry this is so confusing for you, but that means that it's free for the public to use.

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

              • identicon
                timbered, 26 Apr 2018 @ 6:06am

                Re: Re: Re: Re: Re: Re: Both ways

                I can't argue with a roomful of monkeys....

                From the link you posted:

                A number of legal experts in the U.S. and UK have nevertheless argued that Slater's role in the process that led to the pictures being taken may have been sufficient to establish a valid copyright claim, stating that this is a decision that would have to be made by a court.

                But, since you're obviously all legal experts, but have no legal (court decided) case law on your side, go ahead and think I'm the ignorant one.

                I'm done.

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

                • icon
                  PaulT (profile), 26 Apr 2018 @ 6:16am

                  Re: Re: Re: Re: Re: Re: Re: Both ways

                  Also from that link:

                  "American and British intellectual property lawyers Mary M. Luria and Charles Swan said that because the creator of the photograph is an animal and not a person, there is no copyright on the photograph, regardless of who owns the equipment with which the photograph was created.[27]"

                  "According to University of Michigan law professor, Jessica Litman, "No human author has rights to a photograph taken by a monkey," . . . "The original monkey selfie is in the public domain".[28]"

                  Hmmm... almost like you're picking and choosing so that you can attack Wikimedia and others here with no care for the overall pitcure.

                  I know you have some kind of major issue about this, but the case is clear - thus far, nothing has been ruled to state that the picture has a copyright applicable to the human photographer. Rulings *have* been made that state that the monkey cannot hold a copyright, and thus the picture is in the public domain. Therefore, everybody from me to you to Wikimedia have the legal right to use the photo, no matter how much you personally wish they should have to pay.

                  "But, since you're obviously all legal experts"

                  I've never claimed to be any such thing. I only argued with your false definition of the public domain and your attempt to attack people here for correctly applying the real definition.

                  Feel free to make your own legal arguments in response, but the facts are against you from what I can see.

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


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