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.


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • 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 ]

    • identicon
      Talmyr, 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 ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Follow Techdirt
Techdirt Gear
Show Now: Takedown
Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.