Hacker News Reader

Comment by curiousgeorgio | Hacker News Reader

The monkey does not own the copyright, just as my intervalometer does not own the copyright to my time lapse photos, and a carefully constructed rube goldberg machine triggered by an ant (and later pressing the shutter release button) doesn't make the ant the copyright holder.

Wikimedia's own argument states that "the photographer would have had to make substantial contributions to the final image." In creating the circumstances for the monkey to hit the shutter release button, the photographer did in fact make the most substantial contributions to the final image.

In another light, do we give camera operators the ultimate/highest credit for the work of a studio-produced motion picture? No - they are credited, but the director is the one who created the circumstances under which the camera operator's actions capture the essential product of a whole team's work, guided by the director.

View on HN

But in this case the monkey was also the director. If David Slater had been intending or worked towards what ended up happening in some way I'd be a lot more sympathetic to his copyright claims, but as it is he didn't have any agency in creation of the photograph except in owning the camera and failing to secure it.

And I would argue that even if David Slater didn't fully intend for the monkey to take the photo, he had more intention or expectation for that happening than the monkey had for taking a photo. The monkey was only interested in the sound made by the camera, not in directing a photo shoot.

Well, it might be that the monkey wouldn't deserve copyright even if copyright could reside in a monkey. There are broad classes of works like phone books which don't get copyright at all:

http://copyright.uslegal.com/enumerated-categories-of-copyri...

He didn't just own the camera, he went out photographing them. He went to where the monkeys were.

> "But in this case the monkey was also the director."

The ape didn't really have any intent to direct. It was simply playing with an amusing object. I wonder what the situation would be like if this was a case of contact with an otherwise disconnected Amazon tribe. Would that individual have copyright? Would they even understand what that means? If they don't and their face ends up all over the internet as 'public domain' would they have any say about that? (I have no answers here, just idle thoughts).

> "... he didn't have any agency in creation of the photograph except in owning the camera and failing to secure it."

Once the ape took the camera and began taking pictures, Slater was astute enough not to get in the way. Thereby allowing the ape to take "hundreds of selfies". Despite that fact that "at first it scared the rest of them away but they soon came back" -- Overall, I don't think this is at all clear cut about who owns the copyright but deciding without due process seems wrong (the court of public opinion is rarely the correct place).

"The ape didn't really have any intent to direct" Neither did the the photographer in this case.

We can scratch out the hollywood argument because the employer/employee relationship with regards to copyright assignment is very well defined in law.

My armchair-opinion would be that no-one owns the copyright. By his own version of events, the photographer imparted zero control, and zero creative input (in your timelapse, you at least point the camera). He didn't even encourage the primate - his greatest contribution was not interfering. And "I didn't do anything" is not a great argument for creative control.

So, traveling to the location of the monkeys, bringing photography gear (that would otherwise not be there), putting batteries and a card in the camera, turning the camera on, setting the proper exposure in the camera, and intending to produce photos of monkeys... that amounts to "zero creative input"? The photographer did nearly everything here but press a button that makes an interesting sound (from the monkey's perspective).

None which has anything to do with the fact that if the monkey hadn't pressed the button we wouldn't even be having this discussion.

The thick of the creative input here was made by the monkey. The photographer's input would be at best a minor contribution; the light settings and particular choice of gear add very little to the original content of the image, and the particular framing and circumstances were not purposely influenced by the photographer.

If he had purposely allowed the monkey to take the gear to experiment with it then there would have been a creative intention that would have value, but as it stands it doesn't convince me much.

> The photographer's input would be at best a minor contribution

Alright - try taking a photo (shutter released by yourself or a monkey) of a monkey using a camera that (1) isn't present, (2) isn't on, (3) has no batteries, (4) is set to be completely under/over-exposed, (5) has the lens cap on, and (6) is nowhere near a monkey. Let us know how that turns out.

The fact is, the photographer brought gear to monkeys with the intention to take photos of monkeys. A monkey saw a little box and figured out how to make a funny sound with the box.

There are artists who "paint" with bacteria and other live organisms. The bacteria may be producing nearly 100% of the final image (the only reason the works are noteworthy), and in many cases, the result may not be entirely anticipated by the artist. That doesn't mean the bacteria owns the copyright.

If the monkey had communicated in any way that it wanted to take a selfie (or if someone familiar with monkeys could tell that's what it was trying to do), then we could look at the monkey having "creative intention" as you say. Otherwise, either the photographer has the copyright or no one does.

> There are artists who "paint" with bacteria and other live organisms. The bacteria may be producing nearly 100% of the final image (the only reason the works are noteworthy), and in many cases, the result may not be entirely anticipated by the artist. That doesn't mean the bacteria owns the copyright.

But the artist has deliberately set the experiment and put the culture in place to produce things.

In order to make it a valid analogy, the photographer should have acted in a way that purposely invited the monkey to take the camera.

This is did not happen; it was entirely an accident, and his creative input is a question of luck, whereby anyone else who carried a camera and had it stolen by a monkey who clicked around and got a selfie has the same level of input.

Really, this is all just because the guy is a professional who expects to get paid for this, but his experience in the matter has had zero influence on the result.

If I went to Southeast Asia, got my camera stolen by a monkey and had published, I did nothing special to merit attribution.

Honestly, if he had wanted to take the credit for the framing and the positioning then at least he could have done something slighly more elaborate on the matter. A selected curation of those pictures, structured as a narrative, well framed, and placed as an exhibition with accompanying material would have sufficient artistic merit. Instead he chooses to bitch about it on the Internet.

What if you go on an expedition specifically to get monkeys to take photos for you? What if you trained them? Is there some threshold amount of work you could put in before you could claim copyright, or would it always belong to the monkey?

If the monkeys were trained well enough to understand the intent of taking a photo, but not well enough to understand a contract of employment, then creatively I think they would have to own the work.

The fact that the monkey is not trained in pointing a camera is one of the things that might swing it legally away from consideration of ownership by the monkey.

Can a monkey own a thing under the law?

It's an animal. It can be owned, but it cannot itself own something.

Animals have been prosecuted as people a number of times in many different countries under the law. I don't see any absolute reason that they could not be granted ownership of something. Even if there was a specific law stating that this was not true, one of the moves available in the game of law is to change the law. Law is a subset of Calvinball.

If you're training a monkey who has no concept of art but you'll be orchestrating their actions for aesthetics according to your criteria then it seems evident that it qualifies for your authorship given your clear intent at achieving that specific action.

Like most things, it gets looked at on a case by case basis.

>No - they are credited, but the director is the one who created the circumstances under which the camera operator's actions capture the essential product of a whole team's work, guided by the director. //

The director here is the monkey, the photog was the technician that made available the equipment but any artistic input to the shot was apparently the monkey's.

Similarly if you do camera setup for David Hockney you don't get ownership of the shot rights because he only pressed the trigger.

Copyright isn't necessarily about who did the work, it's about who did the specific creative work at the point of creation, here no person did. There is a fine line between this an setting up a photo trap for wildlife imaging, but that line is intent and, whilst fine, is clearly enough demarked to see where this case lies IMO.

I've recollection of a similar case being heard but not of the details, nor even the jurisdiction TBH ... anyone?

> So, traveling to the location of the monkeys, bringing photography gear (that would otherwise not be there), putting batteries and a card in the camera, turning the camera on, setting the proper exposure in the camera, and intending to produce photos of monkeys... that amounts to "zero creative input"?

Precisely. It's heartening that you understand this so well. As you have correctly discerned, none of those acts are in the least bit creative. They are essential preparations for creativity, but they are not themselves creative. The creativity comes solely from the creation of the particular image - the act of capturing a chosen scene in a chosen way.

As another example, if the photographer had done those things, then handed his camera to a random passer-by and had them take a photograph, then the copyright in that photograph would belong entirely to the passer-by. This is a matter of settled law which is beyond any doubt, and for exactly the reasons you outlined - the preparative steps are not part of the creative act.

Random passerby's indicates another human, who the law indicates can create a work of art. Animals aren't recognized as such. If he accidentally tripped, and the shutter went off, does that mean he loses copyright if the camera happened to take something interesting?

No, he doesn't lose copyright, he simply never gets it in the first place since he doesn't meet the criteria set down by law.

In the US you can't get a copyright on a database at all. I doubt you could get it in the EU for a database created by a random accident either.

The camera owner did everything but actually aim the camera, pretty much the entire creative process.

> In creating the circumstances for the monkey to hit the shutter release button, the photographer did in fact make the most substantial contributions to the final image.

That argument works just as well for camera rental companies. Because that's all he did in the end - lend the camera to a different kind of ape.

David J Slater isn't a camera-rental company though: he's someone that earns a living from travelling to exotic locations and pointing his camera at wildlife in compelling situations and then processing the image before selling it as his creative output. The difference being, in this case, the wildlife participated a little more than usual in that creative process by pressing the shutter button.

The situation is a lot more analogous to a celebrity inadvertently taking a selfie in a scuffle with a paparazzo; the celebrity is the intended object of interest and inadvertently triggers a composition far more interesting than the paparazzo's original concept, but the paparazzo was there with the intent of making a creative work. I'm not sure whether any sort of legal precedent exists for that, but I'd be surprised if legal arguments the paparazzo was too creatively uninvolved to have any say in the image distribution rights were positively received.

It probably wouldn't be as famous though if the monkey hadn't taken the image.

Exactly. The only reason the image is worth anything is the monkey took the photo. The owner of the photographic gear seems to be arguing both that it is his photo and not his photo.

Really? Because it's a pretty great picture just by itself, IMHO.

I agree that it's a good picture. But "I took a great picture of a monkey" doesn't sell nearly as well as "This monkey took a great picture of himself". "I took a great picture of a monkey" doesn't get you articles about that picture, "This monkey took a great picture of himself" definitely does.

Yes it is a great picture, but it would not be not worth anything (I mean economically, not artistically) if it was not taken by the monkey.

The fact that he is a professional and intended to take pictures of monkeys is not relevant.

I think we need to ask:

Who would own the copyright had it been another human who pressed the button?

- One human sets up the camera -- another frames the shot and takes the shot.

I would say the second human who framed and shot the image is the copyright holder... meaning the monkey would own the copyright had the monkey been human... but since the monkey is not human (and copyright only applies to humans), then it's public domain.

If the second human didn't know a camera was involved (or what a camera even is), but had instead found a wireless remote control shutter release in his/her possession, and, not knowing what it was, proceeded to inadvertently take photos because the remote made a fun sound (as in the case with the monkey), then I think it'd be safe to say the second human had no involvement with the resulting photos.

We're not talking about a monkey (or human) framing and taking photos. We're talking about a monkey pressing a button because it makes an interesting sound. There is no authorship there.

> There is no authorship there.

Then why are we assigning authorship to a human? Just because he happened to be there?

(Also, I can make a song on a guitar without knowing what it is nor how to play it -- I still hold copyright over my work).

In that case I claim ownership. As far as I can tell I did the same level of creative input as mr batteries. So I should be just as entitled to the work.

Legal precedent is clear: it's who frames the shot and presses the button.

Since the entity framing the shot and pressing the button is the monkey, but non-human animals can't own a copyright, no copyright is generated.

It routinely explodes people's heads that copyright law works like it actually works, not like people wish it did.

No. He scouted a location, planned and financed the expedition, and spent his time waiting and searching for the right conditions in which great nature photos could arise. He was much more than a rental company, the least for not having ever rented out his camera

In creating the circumstances for the monkey to hit the shutter release button, the photographer did in fact make the most substantial contributions to the final image.

It was accidental, though. he never planned for the monkey to take hold of the camera - as opposed to a camera set up to trigger when an object entered the focus area or broke an infrared beam (techniques employed for automatic photography of unpredictable or extremely fast-moving subjects).

I do work in motion pictures; the director is also a hired hand in 99% of cases, whose job is to manage the actors and the other department keys - a COO, if you like. The actual copyright owners are the producers (or the production companies they work for) that hire the director.

What is "creating the circumstances" ? The airline company that made the trip possible ? The company building the camera ? The upset wife that sent her husband away (probably not relevant here) ?

Would a burglar taken by surveillance camera be creating those circumstances ?

Clearly he's not involved in the monkey taking the pictures. He has no right to them.

> What is "creating the circumstances" ?

I would define it as "exercising the most volition that leads to producing the outcome". Not sure how the law would actually define it.

EDIT - Thought experiment: If a photographer spends days constructing all the elements of a shot (including subject, lighting, and camera settings), and, seeing that he/she is about to hit the shutter button, a passerby sneaks up behind the photographer and taps the button before the photographer, would the photo's copyright go to the passerby? What if the photographer had intended to wait a few more seconds before hitting the button? You could argue that the photographer had no intention to take the picture right at that (early) moment, but clearly (to me anyway), the photographer is still the author of the photo because he/she brought together all the elements - not because they simply hit the shutter release button.

I think a more apt analogy what be if photographer inadvertently leaves a camera on the ground, and I use it to take selfies. Who owns the copyright to my selfies, me or the owner of the camera?

You would. But the camera owner owns the equipment and all the physical materials your copyrighted work is embedded in, so he or she owns the only physical copy; you'd find it hard to make yourself rich with it without the photographer's permission.

And of course, the act of taking the picture might conceivably constitute some other crime, such as criminal damage (if a film camera, you're rendering good film unusable) or computer misuse (if digital), so in general, this selfie-taking exercise would be even less of a smart move than usual.

Photographers like to use the term "decisive moment" a lot.

The timing of the shot can be as important or more important than the composition itself.

So depending on the circumstances, I wouldn't dismiss the claim of the passerby right away.

If the person's sole input was tapping the button, then no that person doesn't own the copyright. But in this case the camera owner didn't construct any elements of the shit. The lighting is natural, the monkey aimed the camera, and it sounds like auto ficus was used. The camera owner contributed no artistic effort to the shot

Well, he set up a camera in that location with the intention of taking pictures. Pretty big finger in the pie of circumstance there, if you ask me.

The camera operator situation is totally different because it's a work-for-hire, in which no copyright can be claimed. The director is under the same work-for-hire contract, in fact.

Having taken the time to skim the rulebook (http://www.copyrightcompendium.com/), I'm noticing that a couple phrases keep coming up. One is negative, repeating that "materials produced solely by nature, by plants, or by animals" (emphasis mine) are not copyrightable. The second is a bit more positive, indicating that as long as there's any "appreciable element of artistic expression" on the part of a human, that's enough to make the work copyrightable.

To my non-lawyer eyes, it looks like one could mount a compelling argument that simply creating the conditions necessary for a monkey to take a selfie - even if only as a spur-of-the-moment kind of thing - would qualify as an "appreciable element of artistic expression" on the part of Mr. Slater, at least as far as the law is concerned. It seems like the sense of "appreciable" being used in the rules is somewhat akin to the sense of the word significant in the phrase "statistically significant".

OK, in that case, what if I took my camera equipment to a park, got it all setup, and hid in the bushes, hoping someone would use my equipment, that I setup, to take a picture.

You, seeing the camera equipment, become curious, and use the camera to take a picture of yourself.

I created the conditions necessary for you to take a picture of yourself, but you took the picture.

Who, in your non-lawyer eyes, owns the copyright to the picture? Does it make a difference if you're a human or a monkey in that decision?

That one's rather different, since there are two human parties involved. I didn't see anything that would resolve that question in the reading, but I imagine there might be some legal precedent from prior cases that one could dig up. But where US law doesn't allow for copyright to be assigned to non-humans, bringing an additional human agent into the scenario creates a hypothetical that is non-analogous and therefore unnecessarily confusing.

I think that a closer analogy would be if you were to set up a motion-activated camera trap in the park to take pictures of the local wildlife. In that case it would be fairly uncontroversial to say that you would get copyright to the pictures. Compared to that hypothetical, I think that as far as US law is concerned it could well be the case that the fact that for this photograph the action the monkey took to trigger the camera shutter involved actually coming into contact with the shutter release button is ultimately a distinction without a difference.

Except the is no artistic expression in providing a camera.

I suspect you're arguing from how you understand the term "artistic expression", now how it's defined for the purposes of the relevant law.

Law works like programming: Nouns need to be defined before they can be used, and the operant meaning is the one you get form a scrupulous and pedantic reading of that definition, regardless of what your intuition says about the matter.

It would be different if the photographer was using a timer, remote, or other sensor to take photographs of the monkey. In those cases the photographer would clearly be in control of the situation and the copyright.

This seems a little different in that the camera was stolen from it's owner and pictures were taken. Right now the U.S. courts don't view monkeys as people (http://www.cnn.com/2013/12/09/us/new-york-chimps-personhood/), but what would happen if the monkey was someone's pet? Who owns the copyright on a picture taken from a stolen camera?

You are correct, the monkey doesn't own the copyright because a monkey can't own a copyright. But the camera owner did not put any substantial effort into the shot so he also doesn't own the copyright. No one owns the copyright.

Studio camera operators actually would be the ones creating the art.. its just that its work for hire so the copyright goes to their bosses.

I don't think you can sign a work for hire contract with a monkey.

That's a decent counter-argument. Perhaps this subject needs to be fought out. Robots (with or without AI) may be taking photographs in the future...

Reply on news.ycombinator.com