This is almost bizarre. First we were discussing copyright again, on this site, in the Baio vs. Maisel case. Then I linked what looked to be one of those friendly little internet memes, the black macacque taking pictures of himself with David Slater's camera.
So now the two have been dumped into the same blender and swirled together. They're actually arguing over the copyright of the monkey pictures. When I say "they," I mean Techdirt and Caters News Agency, which represents Slater.
It's a fair question, at least. The copyright law, if I remember, has a line forbidding the copyrighting of pictures taken automatically. What exactly that means when it comes to wildlife photography isn't exactly clear. At least not to me. What about a picture like the infamous jumping wolf photo, where the photographer set the camera up in a blind and it was triggered remotely by a sensor set off by the animal itself? Who "took" that picture? There must be case law covering this.
I seem to recall an old story of some tourists (was it a commenter here?) who happened to ask a passing stranger to take a picture of them with their camera in front of some landmark. The stranger happened to be Richard Avedon. Technically, I suppose, he owned the copyright to that shot, although I don't believe he informed them that he normally charged a King's ransom to do for anyone else what he did for them for free.
In this case, though, the issue is clear. The agency in question doesn't know what it's doing. Techdirt's use of the monkey pictures was clearly and unambiguously Fair Use.
(Thanks to Dave Sailer)
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Original contents copyright 2011 by Michael C. Johnston and/or the bylined author. All Rights Reserved.