Photographer wins 'monkey selfie' legal fight
bbc.co.uk
bbc.co.uk
Anyone know what's up with that?
Looking for the court documents, in any case.
I feel a similar argument could be made for the monkey selfie: the photographer didn't push the button, but he created the circumstances.
For instance, no reasonable person would argue that the photographer's father deserves the IP rights because he helped create a necessary factor in the circumstances by which the photo got taken (the existence of the son). However, if the father didn't exist then clearly the photo would never have been taken.
So the manufacturer is involved, but very indirectly. The manufacturer definitely isn't the author.
Edit: Clarified my argument
The picture did not capture creative expression of the photographer.
In this case, the Work was created by the monkey. Yes, the camera owner helped, but he doesn't meet the established criteria of the Author in existing copyright law. Nor does the monkey (works of nature are not copyrightable).
You can disagree with the law as it exists (I think terms should be drastically shorter, and in no case should copyright be extended retroactively), but it takes an act of Congress or the courts to change it.
What about an artificial intelligence that creates music? Who owns the copyright then, the programmer or the AI?
The macaques were simply fooling around with a plaything and had no comprehension of what a selfie is; there is no artistic intent on their part. On the other hand, the photographer by his account appeared to go into this project with the specific intent of obtaining a monkey selfie. The concept, the subjects and their moods, lighting, shot settings, etc. were all his doing, and by any reasonable yardstick his work should be recognized as a form of artistry, just as how it is not exclusively the cinematographer, but the Director as well who is entitled to copyright on a film.
And yet we have people arguing in court that by the legal specifics of who owns copyright on photographs, this is purely the monkey's "work" (and winning).
A monkey didn't sneak into his hotel room and take a happy snap. He sought them out and spent days with them, and handed his equipment to them. That's not 'indirect causality'.
By your reasoning, if I was to put a camera in a tumble-dryer and let it snap photos while spinning, those photos would not be mine because whilst I set up the circumstances, the actual photos were not specifically composed by me.
Far too much emphasis is placed here on who pressed the physical button, and not who brought everything together.
I don't have a problem with that consequence. Copyright is supposed to reward creativity. I don't consider "photo made by putting camera into a tumble dryer" creative in any meaningful sense. I understand that a lot of modern performance art would probably be excluded with this approach - but I don't see it as a problem, either.
That's extremely provincial and 19th century view of the matter.
In modern art all kinds of artists including photographers give creative control to random elements and processes.
It's the setup they built and the creative concept behind it that defines their artwork, not the details like "composition/timing" which they can leave to chance, others, etc. (Yes, in some works even "composition" and "subject matter captured" can be detail left to chance -- this is often the case in e.g. generational music and painting, where the artist just sets up the general framework).
Artists are welcome to do all kinds of things, such as "given creative control to random elements and processes". But they shouldn't be surprised if copyright law doesn't fully apply to the result.
Because it was superseded by 20th and 21st century ones?
They didn't represent the animal, they defended a copyright infringement charge, if I'm not mistaken.
And I'm ... rather surprised ... that they were given anything more than "friend of the court" standing in this.
Imagine if you hand it to a renowned cinematographer who films something incredibly artistically.
The person composing the shot and choosing what is "fixed in a tangible medium of expression" owns the copyright.
The owner of the camera doesn't automatically own copyright.
Meanwhile in the real world I somehow doubt that this has ever come up as a legal issue.
Yes, that is correct. Copyright resides with the person who provides the creative expression in taking the photograph, not in the subject or person who provides the equipment.
This most often comes up in the context of portrait photography/family photos. People expect that they can automatically make copies of the pictures of themselves that they paid someone else to take, but unless the contract is specifically written and signed by the photographer that the work is a "work for hire" and specifies that the copyright is owned by some other person, the copyright remains with the photographer.
In the motion sensor scenario, the photographer frames the shot and defines the conditions under which a photograph will be taken.
In the monkey selfie, the photographer did not frame the shot, did not direct the camera, did not control conditions under which the photo would be taken (beyond the manufacturer's button). This there was not creative input by the photographer in the actual image captured.
What if it had been wind moving the camera, rather than monkeys? Do you feel his authorship would have been equally lost in the middle of that sequence of frames?
""" They were quite mischievous jumping all over my equipment, and it looked like they were already posing for the camera when one hit the button,” he told The Telegraph in 2011. “The sound got his attention and he kept pressing it. He must have taken hundreds of pictures by the time I got my camera back, but not very many were in focus. He obviously hadn’t worked that out yet." """
http://www.telegraph.co.uk/news/newstopics/howaboutthat/8615...
There is some doubt whether Slater actually used a remote trigger, but that wouldn't have been as good a story as the "monkey selfie", so the image may not have gone viral, though he'd have a better case to own the copyright.
Imagine an AI that generates songs. Imagine it generates millions of songs.
What are the odds some of those songs will accidentally and independently "copy" features deemed distinctive and commercially valuable in existing songs under copyright?
Is this deliberate creative copyright infringement surrounded by noise, or is it the result of an aggressively fast random search of a limited symbol space - and what is the difference?
Copyright law is going to have to change. It's either going to have to become irrelevant, or it's going to have to support hybrid not-quite-patent not-quite-copyright IP protection of generative/creative processes/personas, either manual or automated.
Another question is: what are the odds that a future song will inadvertantly copy one of the computer-generated songs?
Given that there are only a finite number of notes and chords, that some note-sequences are more "musical" than others, and the computer can easily generate billions of songs, one can imagine a musical copyright troll (like a patent troll, but with copyrights):
1. creating a large number of songs on a computer
2. writing software to detect similarities between new songs and the computer song collection
3. shaking down songwriters/artists for profit
> Copyright law is going to have to change.
People have been saying that for some time. My own take is that it will change when it no longer suits the rich and powerful.
If you use a computer to generate songs, there is no creative act, and no copyright.
If you copy a song someone else generated with a computer, there is no creative act, and no copyright.
If you independently write a song, and a computer independently creates an identical song, there is a creative act, and you own the copyright to the song you created (but the song the computer created is in the public domain).
If two people independently write the same song, then they both own the copyrights to their respective songs.
I also imagine writing the program to create songs would count as a creative act.
For example, when Clippy pops up and helps me write my novel, Microsoft doesn't have any copyright claims.
> I also imagine writing the program to create songs would count as a creative act.
Yes! You would own the copyright on the creator program, but not the created works.
If there is not substantial creative expression by the user in the final output, then the output is in the public domain. And independent creation is a defense against copyright infringement claims.
"...authorship rights should go to the user when the user makes a very substantial contribution to the output. But when the user does very little and most of the output is left up to the AI machine, then it is less likely that the user may own the copyright in the output. " [CONTU 1974 - yes, 1974]
This isn't a conflict under US copyright law - independent creation is a defense against copyright infringement under US copyright law. In contrast, patents apply even with independent creation.
While not a traditional composition he did choose one specific one out of the millions of monkeys on the planet and in that specific location. And it is a compositional strategy that has perhaps never been tried before.
/heheheheh
A malfunctioning equipment don't change the fact if a artist has made some creative input. So long the creative aspect is still visible (ie, the image is not all a single color), there is a argument to get copyright for the combined result. What the creator do not get is exclusive right to any work that has similar malfunctioning but with different creative input, so a interesting looking artifact from malfunctions should not be copyrightable.
A misconfiguration could be argued to be a form of creative input. Debatable. A write should still be entitled to copyright, even if their books has odd words from when auto-correcting software misbehave.
Who trigged the image is not very important so long the creative input exist. Arguable you could claim that a director has more claim to copyright that the person behind the device, but this is the place which practicality comes into place where society prefer to have a single author over many. From a philosophical perspective I would say that every person involved in creating a artistic work should get copyright ownership, similar to how every developer of the linux kernel has copyright ownership for each part they made.
"It's a bloody monkey for heavens sake"
If you put a camera on the table in front of me, I pick it up, point it at my face, and press the button - I think it'd be fair to claim the copyright there belongs to me, not the person who put the camera on the table.
If you replace me with a monkey, you have the original claim in a nutshell.
I think the actual problem here is the strange assumption that copyright naturally exists, and must be assigned somewhere. And that if it can't be assigned because the obvious recipient isn't a legally defined 'person', it strikes out like a lost child looking for someone else to cling to.
Firstly, I think we can completely ignore "misdeeds". Nothing in the creation of this photograph occurred contrary to anyone else's wishes.
In a nutshell, there was two slightly different versions of events here, which lead to opposing conclusions.
The first version was the tagline the photo was originally published under. A "monkey's selfie".
Now, if I say "pass me my phone", or "may I borrow your phone", and then take a 'selfie' with it; I think it's pretty clear that the "creative input" was mine, not yours. So the question becomes "if I, a monkey, am not legally recognised as a person capable of copyright - does it fall to you, or does it simply fail to be copyrighted".
So that's the example I was trying to frame. That if that monkey was me, the copyright claim wouldn't even be a question (nor would anyone be looking at the photo). But ironically, the description that created the commercial demand of the photograph, also destroyed the photographer's ability to commercially exploit it.
Then we got the later, long-form version of events. That the camera was intentionally staged for this, a wide-angle intentionally selected for this, the remote intentionally positioned for this, etc. "how the sausage is made", but basically the photographer reasserting that the "creative input" was his.
The whole thing then got lost in a limbo; a court in the US, and the ICO in the UK, have both said animals cannot own copyright. Neither has opined on whether an animal is capable of "creative input". If they are, the monkey was likely the primary source of creative input, not the photographer (in which case there simply is no copyright). If they're not, then he'd be the sole creative input, and the copyright is his.
Ultimately I think the photographer shot himself in the foot.
(I do have other questions though. If a US court has said a monkey cannot own copyright, how was this PETA case even a thing? How are PETA able to assert themselves as the IP agent for an Indonesian monkey? And why are the actions of a British photographer, acting in Indonesia, being opined in a US court?)
I mean, you weren't specific so I may assume you stole the camera. And I'm sure monkeys have a concept of stealth, too.
Ultimately it's just a place where the judge has to have an opinion because the law doesn't really have a plan for such an improbable situation.
http://www.latimes.com/local/lanow/la-me-monkey-selfie-20170...
Secondly, AFAIK, the case never ruled on whether Slater held the copyright to the photo, just whether the monkey could. The lower court said animals can't hold copyright, PETA appealed, then later decided to settle. When the US Copyright Office weighed in on the subject a few years ago they declared that the photo was not eligible for copyright:
https://arstechnica.com/tech-policy/2014/08/monkeys-selfie-c...
As far as I know, no court has overruled that position.
Basically, there are very good reasons involving a lot of skill and hard work as to why he had that image in his possession and you didn't, and he deserves compensation for those reasons.
Can you then also sue peta when an animal then steals something of you? E.g. if the monkey would have ran away with the cam, theft.
Because you don’t have any copyright to photos made with your camera, but only to photos made by you.
You can not own copyright of something you didn't created, when someone — be it a toddler or an animal — steals your camera and takes a photo, you do not own it.
Now the real question is if the animal owns the photo, or if no one does.
But US law allows unintuitively that animals can own things, and manage them. As lots of rich people had the idea to set a pet as their heir in their will, precedent was made for that.
So the only question is if the court would follow the precedent, or follow the agencies' opinion that the image is public domain.
Which led to the settlement, which argues that 25% of the image belongs to the management of the habitat where the ape lives, and the rest to the photographer.
PETA argued that the monkey should have copyright in the photo. That argument was rejected by the district court, and didn't look super promising in the appeals court oral argument.
There was a separate discussion about whether the photographer could have copyright in the photo, in particular the Wikimedia Foundation claimed he should not. That discussion has not been tried in court at all, and it seems far from certain (lots of legal commenters disagreed).
https://en.wikipedia.org/wiki/Monkey_selfie_copyright_disput...
A good example are music remixes, you need to actually contribute a lot yourself to have copyright.
If your camera gets stolen by someone, and they take a picture, without you having any influence in that, you do not own the picture. You can not force people who want to use it to pay.
A camera thieve shouldn't profit from a misdeed, and the picture shouldn't be in the public domain by default. So, the photo has to be deleted because noone can claim copyright?
Here is PETAs numbers compared to one of the local shelters:
> the Lynchburg Humane Society, also in Virginia, took in about the same number of animals as PETA but saved 94% and without PETA’s millions. Seagoville Animal Services in Texas took in 1/3 of the numbers (about 700 animals) but only 1/20th of 1% of the amount of money that PETA did, saving 99% of them on a paltry $29,700 budget. In fact, hundreds of cities and towns across America are saving over 90% of the animals and doing so on a fraction of PETA’s wealth.
This PETA quote offers some explanation:
> It’s easy to point the finger at those who are forced to do the “dirty work” caused by a throwaway society’s casual acquisition and breeding of dogs and cats who end up homeless and unwanted, but at PETA, we will never turn our backs on neglected, unloved, and homeless animals — even if the best we can offer them is a painless release from a world that doesn’t have enough heart or homes with room for them.
And:
> the vast majority of which were “owner surrenders,” meaning that they’d been relinquished to PETA voluntarily.
If PETA gets all of the re-homable pets that all of the no-kill shelters denies, then I understand why their numbers are so bad, I wonder how it compares to the public run shelters.
The no-kill shelters also needs to answer for what to do with all of the dogs that can't find a home due to illness, behavioural problems or aggression, is a life in kennels the best we can offer them? And what about the space that a non-re-homeable pet takes from a re-homeable pet?
There have been stories of no-kill shelters that would "donate" their pets they can't re-home to another entity, that will then do the killing.
But in the end, and I think this needs to be addressed, all of the shelters are trying to solve a problem that is created by irresponsible breeders and owners.
The situation in the US is insane at the moment, and there simply isn't kennel space or homes for all of the pets that needs it.
Sorry for the long message, but this issue isn't as black and white, and I have done a lot of thinking on the subject, but I haven't seen a solution that I prefer.
[0] https://www.peta.org/about-peta/learn-about-peta/financial-r...
I don't believe PETA ever went into this expecting to actually win copyright privileges for animals. I think they intended to create a 'chilling effect' around animal photography and any kinds of entertainment they see as 'exploiting' nonhuman species. The further the case goes, the more risky that will look as a commercial endeavour.
The case also raises the profile of the organization. This is not just for vanity: it's how pressure groups try and take hold of the agenda and gain a platform for their views.
Seems kind of speciesist to me. It's kind of like the voyager episode where the holographic doctor couldn't own the books he wrote.
Realistically they are not a human just legally they are.
It's hard to say when human life begins but we seem to settle on treating it as after they are born.
But this is nonsense in any scientific sense.
If so how far back do you go before it's not human, is a fertilized embryo human?
If not, whats the difference post birth?
We know many animals are more intelligent than babies. My point is, it's a pointless comparison. Babies don't represent anything human.
And as per the monkey (in this case) can't create. It's the situation they are put in that can create the art. They are just the tool.
The monkey isn't acting with any real understanding of the creative situation so is just an agent of randomness, like the tumble dryer.
In fact, lots of nature photographers use "camera traps" with automatic trigger sensor when an animal walks nearby -- which is the same as the "animal pushing the trigger" and nobody seriously suggests those are photos the animals took.
Threshold of originality is a complex gray zone.
One of the pictures shows the monkey perfectly centered with a friendly smile on his lips. In my opinion a clear indication that he did have an understanding of the creative situation, that he did not just randomly click the button.
Edit: See above for link to LA Times article reporting that a settlement was reached between PETA and Slater, not that the Ninth Circuit issued an opinion.
> But appeal judges at a court in San Francisco ruled in Mr Slater's favour after a two-year legal fight.
but maybe this was just a denial of PETA's motion to dismiss.
not 2015 and 2016
via arstechnica's coverage: https://arstechnica.com/tech-policy/2017/09/well-likely-neve...
This article: https://www.theguardian.com/environment/2017/jul/12/monkey-s... basically says a couple of months ago he was broke, couldn't afford to replace his equipment or pay his attorney. I hope this result will change his situation but even so this is a huge impact on someone over an issue that realistically is fairly niche.
Questions like this are important to be answered, but surely there should also be discussion about was there a better way to do this than ruining someones life over a picture that could never have existed without his direct intervention and creation of the circumstances needed for the monkey to come into contact with the camera.
I have total and complete sympathy with him and support him absolutely. Twunts trying to deny him copyright on the photo (often based on ficticious versions of how the photo was taken) are screaming arses.
"Yeah I made up the story of the monkey taking the selfie, I actually took it myself"
It's not like the monkey can refute that story....
https://www.youtube.com/watch?v=k1tsGGz-Qw0
And PETA and those ruling against him are jerks of the "friend"'s in the clip caliber.