Folks, I'm still on hiatus, until the all-consuming remodeling and novel writing is done. (End of month, he said hopefully? We'll see.) This is a brief hiatus from the hiatus.
My other significant other, Laura (who is an IP attorney) and I were chatting about Slater's Macaque over lunch yesterday. An interesting question came up. Not over whether the photograph is copyrightable—it is unquestionably not. Read Copyright Act section 503.03(a):
Works—not originated by a human author
In order to be entitled to copyright registration, a work must be the product of human authorship. Works produced by mechanical processes or random selection without any contribution by a human author are not registrable. Thus, a linoleum floor covering featuring a multicolored pebble design which was produced by a mechanical process in unrepeatable, random patterns, is not registrable. Similarly, a work owing its form to the forces of nature and lacking human authorship is not registrable; thus, for example, a piece of driftwood even if polished and mounted is not registrable.
As with all IP law, there is no hard and clear dividing line. At one end of the scale you'll have a "yes" on a particular question; at the other end a "no." Somewhere in the middle you hit a point where it's annoyingly gray. I'm sure there is some computer software out there that is getting perilously close to the undefined fuzzy boundary on this matter.
That doesn't invalidate the law or change the extreme cases. As Laura put it, the monkey case is the "most corner of corner cases." It's really hard to imagine a purer example than that.
Here is the interesting question that Laura asked:
The derivative/transformational bar for copyrighted photographs is extremely high. Your alteration of a copyrighted photograph has to be quite profound and substantial before you can claim it is a new work and not merely a derivative one. That's what protects you, as a creator, from people copying your photograph as silkscreened T-shirts or posters or making changes to the cropping or color balance and claiming that it's a new work that they have the rights to. Those are all merely derivatives of your original work and they are owned by you. It is hard to create a new copyrightable work from an existing copyrighted work; it is supposed to be. But...
...Where is the bar set for works in the public domain? How much do you have to modify a public domain work before you are entitled to a copyright on the modified version?
In particular, what kind and degree of manipulation might Slater have to effect before that derivative becomes a new work that he can copyright?
No idea. There probably is some case law on this, but we're not familiar with it. Anyone know something about this part of copyright case law?
The question is not one of sheer labor, it's about artistic impact. (Kevin Purcell brought up this point in his comments to the previous column. You all should read both his comments. His analyses of copyright law are spot on.)
Briefly addressing some other matters that people raised...
Ownership of a physical entity does not confer copyright. The copyright law is also very clear on this subject and the Office's online FAQ information even addresses that particular issue.
To put it in modern terms, you could loan me a memory card for my digital camera with the clear understanding that you still own the card and that I have to return it after I'm done with it. You are not entitled to any rights to any photographs I make with that card. Sorry John, your "who owns the film" assertion was incorrect. I think you may have been confused by the fact that one of the conditions of being an employee (which can confer copyright to the employer) may be providing the employee with the tools and materials they need. But, it's the employment status which affects copyright ownership, not the providing of the tools.
Same applies to questions of photographers and assistants. They're either employees or they have contractual agreements that make it clear that the copyright resides with the photographer. In fact, in many studios, one of the perks of being an assistant is that you can use the equipment and the facilities on your own time to make photographs. Those photographs belong to you.
Can a minor claim copyright? The following is from this link:
Minors may claim copyright, and the Copyright Office issues registrations to minors, but state laws may regulate the business dealings involving copyrights owned by minors. For information on relevant state laws, consult an attorney.
Remote triggers of various sorts don't raise a new issue. They've been used for a long time, e.g., stroboscopic photography in the studio, which today is done with equipment not much different than the animal photograph triggers. Another case would be many of most dramatic photographs you see of space launches from Canaveral. The cameras that are placed so close to the launch site that no humans are allowed there during launch because they would be injured or killed. The cameras have to be autonomous and self-triggering; uncontrolled radio transmitter/receivers aren't allowed that close to a live rocket either. No one has a successful legal challenge to the idea that the photographer who set up that camera and arranged the triggers and all of that isn't the owner of a copyrightable photograph.
It is possible that some future legislation or case law will invalidate that. It could happen. It's not bloody likely. The concept of long-standing accepted practice carries a lot of weight in law. It's not especially close to that fuzzy gray line. Until the law changes, Slater's Macaque doesn't affect these matters.
Now it's back to writing the novel. Have a good week, people!
The Online Photographer's former weekly columnist, now Technical Editor, Ctein writes between two and ten copyrighted columns a year, on subjects of his choosing and at his discretion.
©2014 by Ctein, all rights reserved
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