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Comment by Cushman | Hacker News Reader

As one commenter points out, it's actually pretty reasonable to give copyright to the owner of the camera— Who owns copyright on the abstract art produced when my Roomba knocks my paints over on the canvas?

Another points out it's not really different from the common practice of wildlife trap photography; the monkey wasn't "trying" to take a picture, it just triggered the mechanism accidentally.

Arguing that the owner of the camera shouldn't have copyright because he didn't intend to take the picture seems highly dangerous to me— you're throwing out a lot of photography there.

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Quoting from the BB article which itself quotes the US copyright law:

"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"

So if you purposely setup the Roomba to knock over the paint and produce art, then yes my understanding is that is copyrightable. But if the Roomba accidentally knocked it over, then it's not - based that there was no purposable (is that a word?) human contribution to create the art.

Similarly, if the photographer had handed the monkey the camera with the intention of getting the monkey to take a photo, then it's copyrightable. If the monkey picked up the camera because the photographer wasn't keeping a close eye on his equipment, then the subsequent photo isn't copyrightable.

My understanding of copyright is that 'intent' plays a part in the decision.

I think the word you are looking for is 'purposeful'

Great points.

I wonder though, what if the monkey had intended to take the self-portrait. I'm not saying this was necessarily the case this time, but I wonder what implications this would have.

Then again, since the monkey lacks a language with which to communicate to us, it's probably not possible to know one way or the other.

some monkey/human pairs do know ways of communicating with each other. signing, and key boards

Does it make any difference what the monkey's intention was though? As far as the law is concerned he has no rights in the matter regardless so surely it's irrelevant.

Exactly. In the eyes of the law, there are two catergories: humans and everything else. Monkeys/mechanical processes are everything else, and it is irrelevant to try to determine a monkey's intention (in the eyes of the law), just as it would be worthless to debate the intentions of the can of paint. In the eyes of the law, non-humans have no intentions.

And why not give copyright to the owner of the monkey?

Both, the monkey and the camera are "ownable" and took part in creating the picture... I would even go as far as to argue the monkey was more important than the camera. Should we also give copyright to the "owners" of the algorithms that took part in calculating the correct exposure for the photographs the monkey took?

And it's not like trap photography in that the monkey framed the picture himself, and framing is in itself a very important part of photography. Some would say even more than exposure that can (and was in this case, as I already pointed out) automated by the camera.

EDIT: redaction.

> the owner of the monkey

These macaques live on Sulawesi in Tangkoko National Park. No one owns them.

So the Tangkoko National Park probably owns the monkey.

In many countries, acknowledging ownership implies accepting responsibility. Chances are that they would have to provide the animals shelter in winter, wouldn't be allowed to let them be eaten or die of starvation, would be accountable for damage done by the animals, etc.

So, I doubt they will call themselves the owners of the animals.

Plus many of the monkeys and animals in their park are likely transients that move in and out depending on the season. This would be like claiming ownership of cattle that wanders onto your yard.

You've fallen into the trap of assuming things need to have copyright. It was only 1978 (in the US) when things got copyrighted automatically on creation, before that you had to register it to receive monopoly rights from the government.

>You've fallen into the trap of assuming things need to have copyright.

It's not a trap. In a capitalist society it's inevitable that copyright protection be required to ensure things run smoothly. Artists, content creators, IMO deserve to earn a living in return for the richness they add to life. Without art and literature my life would certainly be poorer.

Of course artistic works (as defined in copyright law) don't necessarily require copyright in order to be made. But what of those who write or paint or sculpt, or what have you, when there is no protection. Yes they can "get a job like the rest of us" but for some this will greatly limit their ability to create (for others the converse may be true I'll accept).

But, I hear someone splutter, "a painter will get paid!", "a writer will get paid!" for the work they do ...

Suppose as a writer I release a new novel. It took me 2 years to write, many hours of work. The novel takes a slow start but the initial print run sells after a month or two and less editor costs and print costs I'm only slightly in debt for the project. I send for a second run. Thing is the print house gets my order and refuses to print for me. See they're selling my novel now, altered the author, rewrote some of the autobiographical parts to put me off claiming it as my own. Oh well, there goes the house to pay off my debts. The print house of course rings some book sellers to pass on the book, "no thanks we don't want it" they say; next day they're selling the ebook on their website.

What loss though? That book is pennies now when it was pounds before. The question is will the author still write? Will they have time to devote to writing without reward. Some will but I think we'll all come out of such a situation worse off.

Is copyright perfect? Not by a long shot. Should we ditch it bathwater, baby and all? Definitely not.

Regardless of the 'inevitability of copyright' (which is disputable, but not relevant here), not every single thing must have copyright. There are still exceptions, and this might well be one of them.

While IANAL, attributing the copyright to the camera owner seems like attributing copyright over the color patterns of a flower to the guy who watered it. Just because there was human intervention somewhere in the process doesn't mean it's an human creation, especially if there was no intent of creating it.

When I said "assuming things need to have copyright", I meant that not everything needs to have copyright (e.g. most government works, mere duplications of public domain works, things created by animals or nature, random posts on message boards or tweets, etc.) not that nothing needs to have copyright. Simply having to ask for copyright and then having to positively respond a few years later when the government asks "are you sure you want to pay a small fee to secure our backing of your copyright monopoly on this?" would be fine.

But yes, now you mention it copyright law is balanced far too much towards "the creators" (by which of course I mean the corporate owners of the creations, not the artists themselves).

It appears that you replied to the wrong comment. The parent comments specifically on the automatic assignment of copyrights, not on the merit of copyrights themselves.

I don't think I have. I'm just asking the question— Should I be supported in selling the abstract art produced when my Roomba knocks over my paints? Yes seems like as reasonable an answer to that as no.

Also, considering that we are now well past 1978, there's an extent to which things kinda do need to have copyright. You'd be surprised how difficult it is for it not to, even if you're trying.

Correct. Most people who give a camera to a monkey do so with the intent that a picture is taken.

Another issue that is often omitted is "selection". Most photographers take thousands of photos and then choose only a few picks. This selection process is every bit as creative (if not more) as pointing a camera at some subject and pressing a button. A picture taken by a monkey is rarely the only picture -- most of the interesting pictures that were not taken by photographers themselves are actually the rare few in long series of misses. The fact that a photographer was smart enough to choose "the one" hit should be rewarded.

Finally, the "copyrightability", believe it or not, is subtly determined by who the artist is, as was demonstrated countless times by pop art stars such as Warhol and Lichtenstein. Since we here are gentlemen of precision so to speak, think of it this way: there is an "intent" factor X which is multiplied by the "stature" factory Y (meaning stature of the artist/photographer in the art world -- terribly hard to determine, I know), which results in some "copyrightability" value Z. It is incredibly unfair to the lesser known artists of course, but such is the nature of fame and art. It's a winner-takes-all world.

>Most people who give a camera to a monkey do so with the intent that a picture is taken.

Not what happened here: "David Slater has already admitted that the monkeys found a camera he had left out by accident and that he did not have anything to do with setting up the shot."

>The fact that a photographer was smart enough to choose "the one" hit should be rewarded.

Then, are the other pictures not copyrighted?

> David Slater has already admitted that the monkeys found a camera he had left out by accident

But he still picked up the camera. He still decided not to trash the photos.

> are the other pictures not copyrighted?

It's subtle. They are copyrighted of course. However, if you repurpose someone's work in a way that is completely different from the intended (Andy Baio's case wasn't different enough, btw), you may claim copyright. See Richard Prince's Marlboro man.

I was swimming in a river and picked up a rock. I like it's shape. I must own its copyright! insanity

Not insanity at all. Look up "found object as art" (Marcel Duchamp's readymades etc.) The whole concept of art in the 20th century was redefined by this idea.

Copyrighting ideas is deeply entrenched in contemporary art. As a matter of fact, contemporary art is entirely about ideas as opposed to craft.

Good grief.

Duchamp didn't just pick things up and put them on display. That's not what Found Art means, and it never has. Duchamp's art depends crucially on his creative modifications. Same goes for his Dada contemporaries and even moreso for later surrealists.

How about this: go find yourself a rock, tell some people you own the copyright on its shape, (or better yet, its "idea" as you say) and tell us how they respond. Yes, you are allowed to use family members.

  > As a matter of fact, contemporary art is entirely about ideas as opposed to craft.

Dare I ask you to back this one up?

> Duchamp didn't just pick things up and put them on display.

The very act of "picking up" is art. As a matter of fact, everything associated with an artist is art. When an artist farts, it could be considered art if the artist intended so. Please, don't tell me that those "modifications" were somehow more important than the very act of recognizing/curating. Important -- yes perhaps -- but more important than "picking up"? No.

> Dare I ask you to back this one up?

I spent roughly five years studying contemporary art and it is a very general conclusion, a piece of "wisdom" so to speak, that I came to through my experience with contemporary art. I doubt that any single example I bring up will satisfy you (you will then claim that it's anecdotal evidence). Perhaps this piece of "wisdom" has been mentioned somewhere by some art critic, but I don't have any literature at my hand right now, and scouring Google could be too selective (you can usually confirm anything by performing a Google search).

Basically, you have to take what I said at face value (or consider how many years you spent studying art and whether to go along with what I said or come up with your own piece of wisdom).

Wow, so let me get this straight. Anything an artist touches or otherwise considers qualifies as art. Since any representations of such are immediately and automatically copyrighted, I am threatened with the prospect that my own art is inevitably infringing on countless copyrights. Sort of gives new meaning to the phrase "maximal copyright" doesn't it?

Thankfully, reading the second part of your comment reassures me. It's rare that I encounter an appeal to authority where the supposed authority is the party appealing. 5 years of study not withstanding, your comment below about "anyone who understands art" gives me enough information to properly categorize your arguments.

> Anything an artist touches or otherwise considers qualifies as art.

Not literally, but that's the general gist of it. It all depends on context.

> I am threatened with the prospect that my own art is inevitably infringing on countless copyrights.

Look. If you are an artist, not only do you infringe on countless "copyrights" (have to use quotation marks because I am not talking about literal copyright), but many other artists also infringe on yours. There.

EDIT: Have to expand a bit on copyright. The reason I wasn't talking about copyright in a literal way is because art has its own system for dealing with "copyright" infringement (actually a superior one, one that is closer to how free market works than to how law works), distinct from legal action. Legal action usually only comes in when (a) there is significant money involved, (b) when hard evidence could be readily used, and (c) when dealing with low-end and mass markets such as popular photography. Hard evidence in art is usually very difficult to come by (as you might have gathered from my "appeal to own authority" response). The system for dealing with copying is simply that when a work is labeled derivative by a large enough number of people in-the-know, its value in the high-end market evaporates. Most other spheres (e.g. tangible goods market) don't have such system in place and therefore have to rely on the legal concept of copyright.

ANOTHER EDIT: Seems like you are a kernel hacker, so my hat is off to you. Just want to let you know that the concepts we are talking about in art do not translate well into software (derivative software is still useful, often more so than what it was derived from, while unoriginal art is just that).

>They are copyrighted of course.

Who owns it, then?

>However, if you repurpose someone's work in a way that is completely different from the intended (Andy Baio's case wasn't different enough, btw), you may claim copyright.

Sure, but that wasn't done for any of the picture he didn't choose.

> Sure, but that wasn't done for any of the picture he didn't choose.

In which case the following holds: the picture is copyrighted by the individual (a legal subject) who pressed the shutter or, in case the button presser is not a legal subject (i.e. an animal), by the owner of the camera, or, in case the work is commissioned on special terms, by the entity who commissioned the work.

But is that law? I've never seen the ownership of the camera being used to determine copyright ownership.

I am not a lawyer. However, if law is rational (and I hope to God it is!), it will be codified/applied in a vaguely similar way.

In your mind at least, you can equate owning a camera to "paying"/commissioning a work. Many different entities (stock photography websites) take away your copyright in exchange for cash. You can consider the act of giving a non-legal entity a camera as an act of "enabling" (commisioning) photos to be taken on it.

I've never heard of the "artist stature" theory regarding what is copyrightable; the only time I've heard stature come into play is related to derivative works and destroying sculptures. What ruling would apply here?

I'm not a lawyer, but from my experience with art, if two people go out for a walk, and one of them is a big-name photographer, and a picture is taken that has some interest, and it is unknown who exactly took it, there is almost no chance in hell that the lesser-known person will be able to successfully claim copyright.

The reasoning is as follows: (A) the picture that was taken is interesting in some way, otherwise nobody would fight for copyright to it; (B) everything else being equal, a well-known photographer is much more likely to take an interesting picture than an unknown one. Given (A) and (B), most courts would lean towards the established artist in this case.

Being a gentleman of precision, you might provide an example to support your assertion -- some kind of legal precedent or ruling perhaps.

http://en.wikipedia.org/wiki/Appropriation_%28art%29#Appropr...

This wikipedia article has nothing to do with your vague assertions above, except for the bit that directly contradicts you: "Though he claimed fair use and parody in his defense, Koons lost the case, partially due to the tremendous success he had as an artist."

You don't understand. The article mentions Koons' case only because it is so unusual. Anyone who understands art typically agrees that Koons should have won. In fact, this case could be used as a way to gauge someone's grasp of what contemporary art is.

Selection doesn't matter in (U.S.) copyright, except as a factor in a compilation or derivative work, and then "does not imply any exclusive right in the preexisting work." http://www.copyright.gov/title17/92chap1.html (The photographer in this case gets full copyright for his creative selection of a set of photos - but not a copyright on the preexisting photos themselves). Note also that independent creation is not blocked by copyright, so you're free to select that same photo in your creative selecting.

Artist stature doesn't determine copyrightability (though the $ and fame may help in the court case or pre-lawsuit posturing)

U.S. copyright protects "original works of authorship" (generally described as the "creative expression")

Not "selection", not "my idea", not "artist's right to control", not "effort", not "found art" - "creative expression"

If a human stole his camera and took a picture, it would not be his.

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