Monkey Business Monkeywrench

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.

Mike
(Thanks to Dave Sailer)

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Original contents copyright 2011 by Michael C. Johnston and/or the bylined author. All Rights Reserved.

Comments

[Jeff]

I wonder if TOP has previously had successive posts on different animals (e.g., ducks and monkeys) while still keeping on-topic photographically.

[John Camp]

"Techdirt's use of the monkey pictures was clearly and unambiguously Fair Use."

So what you're saying is that if you see a picture that seems to be pulling a lot of response, it's okay to put it up on your website (because you need the clicks) as long as you also post some bullshit that comments on issues in the news. I mean Techdirt didn't have to post the picture to make the comment...but how many clicks would that get?

If my four-year-old grandson takes a terrific if somewhat accidental photo (and I have given him a P&S to work with), couldn't his parents copyright the photo (on his behalf) as his legal guardians? Wouldn't the same apply to a pet monkey? Animals have rights, too, and there are lots of laws specifying what they are: yet, since they are animals, it must be up to someone else to speak for them. I would suggest that that would be the guardian...The monkey has the copyright, Slater is simply acting on his behalf, trying to pull in a few bucks. All those bananas ain't free.

Do I really have to sign my name to this?

[Jim Bullard]

I would think there was a distinct difference between the wolf photo and the monkey business. The wolf photo may have been auto triggered but the photographer did plan and set u p the shot to "auto-trigger". With the Black Macacque there was no participation by Slater except that he owned the camera that the monkey "borrowed". I suppose if he gave them some bananas it could be argued that it was "work for hire". ;-)

[Ian Loveday]

You know what the saddest part of this story is?

Nobody gives a damn (let alone any money) for the black macaques which are on the verge of extinction; this photo has by bizarre happenstance catapulted them into the spotlight of world media. But what are we wrangling about and probably paying lawyers obscene fees to sort out? who owns the copyright of the photo.

I say the macaques should be made the beneficial owners of the copyright and get every cent that can be gotten out of the system.

[Random Photog]

Under the Berne Convention copyright is judged under the law of the originating jurisdiction so if a US site likes to claim "fair use" that isn't necessarily so. If a case is brought that case can (and should) be held according to the law of the originating jurisdiction even if applied in a US court. There's also the complication that some jurisdictions (like the UK) judge any web site that targets the UK as an audience as being prosecutable in its own courts even if the web site is offshore.

Another questionable issue is that as the monkey pictures where taken under the direct supervision of David Slater it may well be that he is the copyright owner. This would be in a similar sense of "work for hire" and as monkeys don't have legal contractual rights all rights would naturally defer to David Slater in this instance.

The basic issue with this whole discussion is too many people in conflicting jurisdictions are making assumptions about the law and using force of rhetoric and ignorance to win the day. This is very questionable at best. Occupying lands and rattling sabres like Techdirt is an old trick but doesn't make it so.

[Ken White]

Shoot the lawyers and pay the monkey.
Not that this matters much, I am a software engineer for a litigation support company. You cannot even begin to guess how serious these folks get.

[Alan Sailer]

Interesting post which moves me to reply here for the first time.

The statement "has a line forbidding the copyrighting of pictures taken automatically" would destroy all hope of copyright for the entire field of high speed photography!

Since no reasonable human reaction time could capture events that happen in mili or microseconds, automatic triggering is vital.

Stephan Dalton, Ori Gersht, Harold Edgerton and many others, including myself, do not have copyright over the pictures we spend so much time setting up?

Say it ain't so!

Cheers.

[Mike Johnston]

"Do I really have to sign my name to this?"

Maybe you could use, you know, a nom de plume.

;-)

Mike

[Mike Johnston]

"Stephan Dalton, Ori Gersht, Harold Edgerton and many others, including myself, do not have copyright over the pictures we spend so much time setting up? Say it ain't so!"

It (probably) ain't so. (But don't take my word for it. IANAL.)

Mike

[hugh crawford]

When I was a photo assistant, I would often be the one that tripped the shutter, but there was never any question who had the copyright, even when the photographer was in the picture.

[Gary Brown]

Re tourists handing their camera to a passing stranger, see Who owns the copyright? by Carolyn E. Wright on why that's generally not a great idea.

[David Dyer-Bennet]

Copyrighting a photo isn't something one does; it happens inherently when the photo is first fixed in tangible form (meaning, these days, written to the memory card, mostly). I'm pretty sure that a photo by a child is copyright by the child, with the parents having some control over how the child uses his property (and not copyright by the parents).

I'm pretty sure that a monkey can't own a copyright. No idea where that leaves the photos in question.

[erlik]

The agency knows perfectly well what it's doing - they are trying to extract money. Nothing more and nothing less.

If Slater was dishonest and said he set up the camera to take the pictures, he might have claimed he was the author.

Apropos Avedon, here's an interesting story about possibly the last shot of Henri Cartier-Bresson (taken from the Google cache, because I can't find it on the site anymore).

[Jan]

In this case I think the issue is clear. Slater owns the copyright and the agency the rights to distribute the pictures. Techdirt is just poking the bees nest with a long stick. They will get stung, eventually.

[John Driggers]

Consider this:

Copyright is one way of expressing "ownership" of intellectual property--as are the related concepts of patents and trademarks.

Copyright law establishes ownership for creative "property"-- absent a superseding agreement (i.e. work for hire, employee, etc.)--by saying, copyright (i.e. ownership) belongs to the creator of the "property" at the instant of creation.

In this instance, Slater (the non-monkey photographer) is not the "creator," but he does have possession of unowned and/or abandoned property that he found. Found property belongs to the finder, absent a showing that someone else owns the property AND has not abandoned it.

While all the web foo foo over this at the techdirt treats the monkey as if it were a human, capable of forming creative intent and actually making the photograph or saying that since the monkey couldn't get copyright, then it's in the public domain are in the first instance silly and in the second misguided.

The issue is ownership. There may be no copyright, but Slater still OWNS the photos as found property and there is no one with a better claim to ownership (and no, the monkey can't make a claim to ownership). So the news agency, which licensed the photos from Slater the owner is within their rights to ask for the photos to be removed.

As for fair use/news reporting. The way that works is you don't have a fair use "right" to take another news agencies licensed photos to report a story--whether the ownership of the licensor is from copyright or from general property law.

Just sayin', you know.

[Scott]

I don't see how Techdirt can claim fair use, they clearly " [have an] effect of the use upon the potential market for or value of the copyrighted work." The fourth, and many argue the most important, of the four criteria applied to copyright cases.

If their use can be claimed fair, how could any photographer owning a newsworthy image ever benefit? How would you view the Daniel Morel Haiti image cases?

[phil martin]

the photographer and monkey share 98% of the copyright, the remaining 2% to the photographer.

[leon]

Techdirt's fair use claim is not the one they assert the strongest: they actually claim that the photograph is in the public domain since (their assertion!) no person or legal entity can be indicated that meets the criteria for actually establishing the copyright. If no entity can hold the copyright, by definition it must be in the public domain (to answer mr. Dyer-Bennett's question).

The Techdirt guys actually consider all jurisdictions as per Berne the convention. This does not lead them to another conclusion.

As per mr. Driggers' remarks: in civil law systems ownership is only possible for physical objects that humans can manipulate (this excludes the wind and clouds, for instance). Data representing a photograph does not fit these criteria because it fails the "physical object" demand. Maybe Comman law jurisdictions treat that concept differently so YMMV.

Ownership concerns the memory card and the computer that reads it, it does not cover the data (the picture).

As much as I hope that better times for photographers making a living from their work (or works?) arise sooner rather than later, I do not see any reasonable way to found a business case on copyright for this image.

I for one am glad that a public domain exists and am convinced that we are all at a loss that no material seems to end up there anymore. Lifetime plus 70 years is not a "limited time" in my book, at least not where the author is concerned. When the copyright thingy is finally settled, this may be the only expression entering the PD this year!

[Zalman Stern]

Getting to be time for a new TV show ala Judge Judy or The People's Court that solely covers photographic copyright disputes.

-Z-

[Mandy]

it sounds like it is public domain.