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.