Monkeys Don't Do Fair Use; News Agency Tells Techdirt To Remove Photos | Hacker News Reader

Monkeys Don't Do Fair Use; News Agency Tells Techdirt To Remove Photos

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163 pointsnextparadigms70 comments

Michael, regardless of the issue of who does and doesn't own the copyright - it is 100% clear that the copyright owner is not yourself.

You have blatantly 'lifted' these photographs from somewhere - I presume the Daily Mail online. On the presumption that you do not like to encourage copyright theft (regardless of who owns it) then please remove the photographs.

The insidious assumption here is that someone must own these photos, if not the author then somebody else, because everything has an owner.

Once explicitly articulated and challenged, this assumption will be defended on the grounds that anything that is not owned is worthless, and assigning ownership gives it value. If this viewpoint is resisted, and if it eventually triumphs, we'll find that those who resisted it own nothing, and those who forced it on the rest of us own everything.

This has happened before.

My first thought, after reading my parent, was Native Americans (really, indigenous peoples worldwide) and European colonists. Is my parent referring to other cases as well?

Yep, that's the example I had in mind.

The other example is the Enclosure movement in Britain (http://en.wikipedia.org/wiki/Enclosure_movement), where nobles simply stepped in a seized land that had been for common use, in some cases throwing people out of their homes to do so.

(IANAL)

The lawyer's message doesn't appear to be a DMCA takedown notice at all, but rather a cease & desist, which has nothing like the same weight.

The lawyer's messages don't appear to be claiming that David Slater owns the copyright on the monkey's photos. In fact, they appear to be very carefully worded so as not to claim this.

Exactly. This is one of the best copyright disputes I've seen in years.

I'm not sure it even qualifies as a copyright dispute. (Although the copyright issues raised in techdirt's blog post last week are fascinating.)

The goal isn't copyright enforcement at all because noone (up to and including David Slater's own lawyers) is sure who does own the copyright.

Rather, it appears to be an attempt at preserving David Slater's revenue stream by paying lawyers to rattle a few sabers.

Don't assume that Slater authorized this. Lawyers on retainer do this sort of stuff all the time while make-working billable hours for themselves. One thing I've learned is that you really have to watch what your lawyers are doing or they'll end up charging you $350/hour to publicly embarras you.

If that is the case you have your lawyers on a very sloppy retainer.

Going outside the terms of a retainer is classed as professional misconduct where I'm from. A lawyer should not take any action on your behalf without, at the very least, implicit instructions to do so.

DMCA takedown has pretty much the same weight as a cease & desist. DMCA does not really give you a bigger stick, instead it offers the recipient a carrot -- follow the rules and you won't be held responsible.

In both cases it's just a request and in both cases you'd have to file a lawsuit to force action.

Sorry, no, that's just wrong. IANAL but it's rather clear that responding to DMCA takedowns is what grants you safe harbor protection, and such takedowns are made under penalty of perjury. Unless you are outside the US or you're happy to lose your protected status and get sued for copyright infringement whenever a user uploads copyrighted content, you can't just choose to disobey it because you feel like it.

Yes, that's my point. Respond to a DMCA according to the rules, or you could be sued. Likewise, respond to a C&D or you could be sued. In fact, since the C&D offers no safe harbor, you could be sued even if you do exactly what it asks.

The threat in both cases is the same. If anything the DMCA is weaker.

You're mixing up the weight of the threat (that you could get sued for this) with the weight of the C&D itself, which at best means "I cared enough to pay a lawyer some comparatively small fee to write this for me" and in this case means bunk. You could even pretend you owned the image and that I broke a million laws, if you wanted - it's not legally binding.

Besides, sending a DMCA takedown doesn't bar the sender from suing you if you aren't an online service provider (e.g. you're a blogger using Wordpress.com, rather than Wordpress.com itself) or if you knew you hosted the supposedly infringing material in the first place. Both of these apply in this case.

It's not exactly clear, but it doesn't sound like it was sent to their registered DMCA contact, either.

In short, it really looks like someone was rattling sabers and is miffed that the other side didn't quietly fold, because they know they've got a weak hand.

This is why I like Techdirt. It's what TechCrunch tries (and fails) to be: A rowdy tech blog that makes a good point without going too deep into hyperbole. I'm curious to see what the monkey has to say about all this. When will The Onion pick the story up?

Considering the fact that it's fairly obvious that the monkey's took the photos themselves, everyone should quit fighting and marvel in the notion that a fucking monkey took a picture of itself. Next step, put it up under creative commons and call it a day.

If you don't own the copyright to a photo, you can't put it under Creative Commons.

Am I the only one too busy being unnerved by that first picture to worry about copyright? There's so many things going on there- the "smile", the "eyebrows". The way it looks so convincingly real that it's got to be fake, but it's real...

On a side note, I have always understood monkeys were smart. But I don't think I ever really grasped how cogent until I stared this monkey in the face. Besides being red, looking into that monkey's eyes feels just like looking at a person. Maybe that's why I'm unsettled.

I think Techdirt should immediately write up a copyright assignment contract and see if monkeys like to scribble with pens.

Failing that, the monkeys' owner could be a real wild card here.

That would be the national park in Indonesia.

The monkeys are obviously under-aged.

The best rebuttal would be to send a cease and desist right back. I mean... they can't prove that they have the copyright either.

The discourse so far has been pretty polite, aside from that last crack about "lifting" the content. It would be fun to send it back, but the reasonable response is just to reiterate the previous points about there being no copyright holder, and they will be happy to comply once there's some legally binding reason to do so.

Which is never, thanks to fair use.

I don't think that would be a good idea either:

"...sending a takedown notice, if you are not the copyright holder, is what's actually against the law."

As noted in other comments, this notice does not even mention copyright, so that law is irrelevant.

A cease and desist letter is not a DMCA takedown notice.

Perhaps adding the copyright notice to the photo makes it a derivative work, and is therefore protected by copyright?

Another take is that it is the news report that is copyrighted, and putting the main material of the report (the photo) which in itself wasn't subject to copyright represents the substance of the report rather than fair use.

Even if the report (containing the photos) is protected under copyright (and it is), quoting the article is still fair use. Extracting the photos to comment on them is still fair use. Reproducing a substantial part of the report would almost certainly infringe on the copyright. Arguing that the photos are a "substantial" part of the report would not convince a court.

> Arguing that the photos are a "substantial" part of the report would not convince a court.

I'm reminded of a photo of the space shuttle taken by someone in a plane. Wouldn't the substance of a report about this event be the photo itself?

If the monkeys have the copyright, then (in current legislation) no one may reproduce the photos, unless he somehow gets the monkeys to convincingly understand copyright and convincingly express their will to license him.

I think that this is absurd.

I imagine that the law would be interpreted to say that monkeys are not legally allowed to hold copyright, and the works in questions therefore have no copyright.

> If the monkeys have the copyright, then (in current legislation) no one may reproduce the photos

This is overstating things: You can reproduce the photos if you are using them to comment on them, to parody them, as part of a news piece, or as part of scholarly research, among other things.

You might have to convince a court that what you did was fair use but my point is there are exceptions to the absolute you stated.

In this case, the monkey "borrowed" somebody else's camera, without permission, and took the picture in question. If I steal somebody's camera, and take photos with it, do I still own the copyright?

The question isn't whether you hold the copyright, it's if that somebody does.

Yes.

If I break into your apartment and write a poem using your pen, do I own the copyright?

If I write code at work, do I own the copyright?

No, because your contract most likely says that your employer owns everything you create at work.

Your downvotes suggest primate logic hard at work. You asked a question. Primates decided it must be rhetorical, and that you must mean you don't (or do), and that whichever you meant, your stance (though not voiced) must be disagreed with — downvote!

Bananas.

No, he's being downvoted because he was wrong.

If i break into someone's apartment and write a poem with their pen and paper, obviously i still own the copyright.

However, if i write code for an employer the contract almost certainly states that the employer owns my work (and in some (all?) states it's a Work for Hire). jrockway was purposefully making an argument that does not apply in the situation or make sense, and he is being downvoted for it.

I do not appriciate ad hominem attack against those that downvoted a trollish comment.

You have a good point. Did the monkey get any bananas? It could be a Work for Hire situation.

That is an offensive stereotype of monkeys.

Generally, yes, unless your work contract says something else. There are many companies who only have such work contracts, but there are counter examples.

Anyone considered the monkeys didn't take the pictures and it was just set up to look like they did. Now they're kinda stuck because the only reason for the interest in the photos is because they were taken by monkeys, so they can't say they were actually taken by a person who holds the copyright to them because they will lose all there value

Based on the 3 photos in that article they all seem to be in focus and well composed which seems a bit unlikely, although not impossible.

The original article talks about how hundreds(?) of photos were taken and only a few were in focus.

You should point them at Righthaven's (non) case. It's absolutely true that only the copyright holder can issue a takedown and its also true that you can't assign copyright to a lawyer for the purposes of suing people.

I also think the precedents from some of the Righthaven cases would bolster your case that you're use was covered by fair use (at least according to one judge :-)

> It's absolutely true that only the copyright holder can issue a takedown and its also true that you can't assign copyright to a lawyer for the purposes of suing people.

Neither of these statements is true.

What about "only the copyright holder has legal standing to file a suit for infringement" and "you can't transfer the right to sue, exclusive of other rights"?

The holding was that you can't transfer just the right to sue. But my understanding is that you can transfer rights less than full ownership (but more than the bare right to sue), and it'll still be enough to confer standing.

Blue beat me too it but here is an Ars link: http://www.wired.com/threatlevel/2011/06/fair-use-defense/?u...

I read the decision linked by Groklaw as I recall but can't find it right now.

Judge Pro ruled you could not sue for copyright infringement if you weren't the holder of the copyright.

Judge Hunt ruled that you could not transfer enough copyright to sue but not all copyrights.

I've not completely Sheperded that case but I'm coming up blank on any appeals for those particular points.

The way you worded it before, you made it sound like you couldn't sue over a copyright that was transferred to you. I don't believe that's true.

What is being said in the Rightshaven case is that you can't transfer just the right to sue without giving them any of the exclusive rights protected by copyright. I believe that, had they transferred the whole copyright, or at least some of the exclusive rights protected by the copyright, Rightshaven would have had standing to sue.

In short, I believe that bluedanieru's formulation is the correct one. IANAL, though, and this kind of stuff turns on hair-splitting interpretations of words.

If Cater's argument is correct, then surely Cater should also remove the photos because Cater also doesn't own the copyright.

His core argument is that their use falls under "fair use", so there is still no need to remove the photos.

In legal situations, you don't have a "core argument". You have as many parallel arguments as possible, even if they are somewhat contradictory. One argument is that the photos are un-copyrightable (public domain), as they are not the creative works of a human. Another argument is that if the photos are copyright, it's "fair use". He's keeping one foot on both boats, in case one of them sinks.

Another argument is that neither Cater nor the camera's owner own the copyright. As a result, neither one can demand a takedown.

Surely not.

Copyright means that someone has the right to sue you. If there is no copyright, then it is public domain and anyone can do anything that they want.

Cater's putative argument is that they the means by which they came into possession of the photos is somehow more legitimate than TD who must have 'lifted' the photos without asking.

Mike effortlessly notes the obvious flaw in that argument.

I can set my Canon to take a picture after a 10 second delay, so that I don't have to be in the presence of my camera to take a picture. Canon does not own the image, simply because it activated the triggering mechanism.

That's not really comparable. You yourself would hold copyright under those circumstances.

What if the camera falls out of a ripped bag at an airport by a handler and upon hitting concrete, button-first, it takes a picture that would go on to become incredibly popular?

Stakeholders: 1) Owner of bag may claim that it was done on purpose. 2) Owner of camera for the trigger-like aim despite it only happening to camera under severe stress. 3) Baggage handler initiated despite being unaware that the camera took a picture at all until news came out. 4) Baggage company due to contract clause.

You activated the triggering mechanism. Its delay is inconsequential, whether it is 10ms or 10 minutes, since you are the proximate cause of the capture.

These primates composed and snapped the photos themselves, unaided, on their own initiative. The providence of the camera doesn't make the camera's owner the copyright holder, any more than using a rented camera makes the rental company owner of the resulting images. Composition and shot timing are the two primary creative acts in photography — the monkeys did both.

In further support of this, the photographer didn't "activate the triggering mechanism" by even intentionally leaving the camera in hopes to have them take the photos.

I'd argue that a tripwire or any other mechanism of photographer intent to have the animals photograph themselves, would be akin to setting the timer. But, he says it was accidental:

> One of them must have accidentally knocked the camera and set it off because the sound caused a bit of a frenzy, said Slater, 46.

Copyright (under US law) is for creative acts. The creativity in a photograph is things like setting up the shot, framing it, choice of subjects, lighting, angle, aperture, focus, etc.

If there is no creativity, there is no copyright. See Feist.

So the delay, and even who presses the button doesn't matter; the only thing that matters is who is responsible for the creative aspects of the photograph.

And, in this case, whether a non-human can, as a legal matter, create an "original work of authorship".

The monkeys took many photos, most of which were out of focus or poorly composed. Could not sorting through the essentially random photos that the monkeys took, and selecting those with most artistic potential, and perhaps cropping them to improve the composition, be considered a creative act?

Ask yourself this question again but forget that monkeys took the photos. Who would own the copyright in that case?

The person who took the photos, since that would be the creative act. Sorting through the photos and selecting the good ones is also a creative act, but it is a derivative work because the original images are copyright protected. The difference comes about because monkeys are not capable of owning copyright, and hence are not capable of "creative acts" as far as copyright is concerned.

Cropping photos I could possibly believe to be a creative act, but I would find it absurd to consider selecting only the in-focus photos to be a "creative" act. I would put that decision on par with alphabetizing the phone book.

"Selecting those with most artistic potential" were the exact words I used. The fundamental question is whether "found art" is copyrightable.

Sorting through them might be making a compilation, which has separate protection under copyright law. It wouldn't extend to the photos in the compilation, but only the compilation itself…

I have no idea if sorting through monkey photos would count, that's a question best addressed to an IP lawyer.

He misses the plot a bit with the last sentence in the article:

It's unfortunate that a company that has built a business around copyright appears not to understand these basic facts.

I think when it comes to copyright and other IP and the actions of rights holders, it has become safe to apply the inverse of Hanlon's Razor i.e. never attribute to stupidity that which can be adequately explained by malice. Of course these assholes know what they're doing, they just don't fucking care. IP best practice is to assert virtually any right you can dream up, justified or not.

So, surely it is unfortunate to have happened, but that is not to say it is not entirely expected. More newsworthy would be if it hadn't.

I can only hope these instances get more and more ridiculous, with higher profile people, until something finally gives.

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