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Monkey business
August 6, 2014 9:13 AM   Subscribe

Photographer David Slater is currently in a dispute with Wikipedia over this photo, taken in Indonesia in 2011. Wikipedia, Slater claims, has used his photo without permission. Wikipedia has so far refused, "claiming that because a monkey pressed the shutter button it should own the copyright." via
posted by roomthreeseventeen (162 comments total) 20 users marked this as a favorite

 
Oops, sorry, was missing this link from the quote.
posted by roomthreeseventeen at 9:14 AM on August 6


Crossing my fingers, hoping that Slater argues that because bananas changed hands it was clearly a work for hire.
posted by mhoye at 9:17 AM on August 6 [35 favorites]


Amusing, but somehow I don't think it will stand up in court.
posted by tavella at 9:17 AM on August 6


What if it's monkey court?
posted by cashman at 9:20 AM on August 6 [4 favorites]


Well yes, and since all the Wikipedia editors are apparently monkeys, too, it will likely hold.
posted by mochapickle at 9:21 AM on August 6 [3 favorites]


What if it's monkey court?

Then, by God, Scopes should go free.
posted by maxsparber at 9:21 AM on August 6 [16 favorites]




What if it's monkey court?

If that's anything like a kangaroo court, things aren't going to go well.
posted by mhoye at 9:24 AM on August 6 [1 favorite]


So if I use a timer, does Canon own my photo?
posted by cmfletcher at 9:25 AM on August 6 [9 favorites]


So if I use a timer, does Canon own my photo?

Depends on who set the timer, apparently.
posted by hellphish at 9:26 AM on August 6


Does the monkey like the song "Jingle Bells"? Has he ever displayed a sense of self-preservation? Can the monkey tell a lie to benefit himself (or herself)?
posted by tilde at 9:27 AM on August 6 [2 favorites]


Wikipedia is being ridiculous.

I found the location for this shot, set up the composition, picked the costumes, stood in every position, comped it all together, and did the final editing - but I had an assistant pushing the shutter button on my camera. Does that mean it's his image instead of mine?

Slater took his camera to a location, chose to allow the macaques to keep possession of it for a short while as an experiment. I don't see any difference. It was the photographer's choice to let it happen as it happened, to select the useful images from the shoot, etc.

I mean I'm sure I'm preaching to the choir here, but Wikipedia's actions here really get my goat.

...

... in keeping with the general tone of the thread I should probably slip in some sort of monkey joke here at the end but I can't think of one that would be a real howler.
posted by komara at 9:27 AM on August 6 [53 favorites]


Just get the monkey to give him power of attorney and Slater's all set.
posted by Bromius at 9:29 AM on August 6


And if I know anything about the internet, the best way to prevent a photo from being widely distributed is to demand it loudly.
posted by 2bucksplus at 9:34 AM on August 6 [6 favorites]


Clearly Wikipedia is relying on a reductio ad hominid argument.
posted by Curious Artificer at 9:35 AM on August 6 [17 favorites]


In addition to creating this photo, a monkey has also managed to create a critique of Wikipedia far more eloquent than any human essay.
posted by DWRoelands at 9:35 AM on August 6 [17 favorites]


Actually, under English and Welsh law, the precedent of Hartlepool v M le Singe (1805) clearly established that monkeys have the same legal status as humans.
posted by Thing at 9:36 AM on August 6 [5 favorites]


. . . had an assistant pushing the shutter button on my camera. Does that mean it's his image instead of mine?

No, because (all other considerations aside) it is, in all likelihood, a work made for hire for you by your assistant in the course of his or her ordinary duties. Here, however, the monkey was not a paid employee and had not executed a work made for hire agreement. To hold otherwise would be bananas.
posted by The Bellman at 9:37 AM on August 6 [6 favorites]


Wikipedia is being ridiculous

The vote was four people, and anybody in the world can vote. You make it sound like a conspiracy.
posted by bhnyc at 9:39 AM on August 6 [3 favorites]


This is rules-lawyering to such an extreme it's more like performance art.
posted by bleep at 9:41 AM on August 6 [5 favorites]


If that's anything like a kangaroo court, things aren't going to go well.

As I've said before, you really want to stay out of Sloth Court. Because sloth judges are all hanging judges.
posted by GenjiandProust at 9:43 AM on August 6 [17 favorites]


If I have a friend over and s/he uses my camera that's laying around to take a photo of themselves then do I own the copyright to the photo because it was my camera even though the person took the photo of their own initiative?
posted by I-baLL at 9:43 AM on August 6


Assuming the monkey did hold the copyright, why would it mean that Wikipedia could use the photo? Without explicit authorization from the monkey, wouldn't whatever default restrictions apply?
posted by 1970s Antihero at 9:44 AM on August 6 [19 favorites]


I, for one, really hope that Wikipedia helps that monkey get Slater off his back.
posted by yoink at 9:45 AM on August 6 [4 favorites]


This is a great reductio ad absurdum/illustration of one of Wikipedia culture's many ingrained systemic biases: a crowd of editors who are disproportionately invested in anti-copyright politics and already donating their own work for free, going looking for any excuse to deem something public-domain because they want to use it. But the usual outcome of a situation like this, where the rank and file have made a patently ridiculous decision that will result in a lot of bad press for Wikipedia, is for Jimbo to overrule them by fiat — protecting the culture from its bad decisions without addressing the underlying causes. I really doubt this will end up in court.
posted by RogerB at 9:45 AM on August 6 [7 favorites]


"it is, in all likelihood, a work made for hire for you by your assistant in the course of his or her ordinary duties"

Hah. When I'm shooting, nobody gets paid. Not even me.

"The vote was four people, and anybody in the world can vote. You make it sound like a conspiracy."

Just using the same language as the poster and / or The Telegraph.
posted by komara at 9:45 AM on August 6


Apparently the problem is that it would be expensive for him to sue Wikimedia, and despite the large amount of money he has lost due to their telling people the photo can be reused for free they do not themselves have deep enough pockets to justify a suit.

Wikimedia's stance is ridiculous. An animal cannot own anything. People use automatic triggers to take pictures of wildlife all the time, and the copyright is owned by whoever deployed the apparatus.

Whoever is pushing this within Wikimedia needs to go find a life, and stop trolling this guy.
posted by localroger at 9:47 AM on August 6 [10 favorites]


If someone steals your camera and shoots pictures of child porn .. you are not the proud owner of child porn. The camera was taken without his permission or intention, it's not the same as a motion trigger camera.

Assuming the monkey did hold the copyright

Assuming monkeys can fly... monkeys can't own the copyright, and since Slater didn't take the picture it's in the Public Domain by default.
posted by stbalbach at 9:51 AM on August 6 [2 favorites]


Wikimedia is not saying the monkey owns the copyright, it is saying the work is in the public domain: "US law means that "non-human authors" do not have the right to automatic copyright ... This means that there was no one on whom to bestow copyright, so the image falls into the public domain," it said."
posted by soelo at 9:53 AM on August 6 [8 favorites]


Would any court rulings stand on a peel?
posted by Mr. Six at 9:53 AM on August 6 [8 favorites]


the large amount of money he has lost due to their telling people the photo can be reused for free

"Large amount of money"? Is that calculated based on what would have been paid had all the "free" uses been "paid" uses? Because, if so, you need the reality check of the fact that most of the people who've used the image for free would simply have used some other, public domain image in its place (or not used the image at all) had they had to pay for it. I mean, it's a cute photo and all, but it's not hold-the-front-page material.
posted by yoink at 9:54 AM on August 6 [1 favorite]


Also being discussed in this thread
posted by briank at 9:54 AM on August 6 [1 favorite]


It's not really trolling, though - it's pushing an agenda. This highlights one of the biggest problems with the anti-copyright crowd: an unwillingness to consider that other people might have a differing opinion, and that they might make a different choice from them. Thus, any choice that differs is illegitimate, and does not need to be entertained seriously.
posted by NoxAeternum at 9:54 AM on August 6 [2 favorites]


Isn't this all a horrible misunderstanding of what public domain means? I thought anyone could publish their own version of a public domain work and assert copyright over it. Sure, if the monkey uploaded the image himself it would be owned by the monkey, but as long as the image made its way to Wikipedia via a copyrighted version, it's still copyrighted.
posted by miyabo at 9:56 AM on August 6


The vote was four people, and anybody in the world can vote. You make it sound like a conspiracy.

The "conspiracy," to the extent there is one, is exactly the way this "anybody can vote" ideology of openness doesn't remotely match the reality of the situation. The fiction that the !vote (you forgot or haven't yet gotten to the next step in Wikipedia-process defensiveness, which is to assert that it's not a vote, it's a consensus-based debate) is a process totally open to any reasonable participant is a myth, belied by the rules on meat-puppetry and campaigning, but more importantly by the obscurity and laboriousness of the process.

In order to take part in the debate you have to, first of all, know it's even going on (and you have to know the right way, not because someone told you about it on another website!), and then you also have to learn all the policies and cultural mores governing participation in it. In practice the first requirement by itself is enough to limit participation in the debate to an insular, self-selected group of Wikipedian process geeks and rules lawyers in all but the most exceptional cases.
posted by RogerB at 9:56 AM on August 6 [2 favorites]


On the one hand , I will always side with the monkey. On the other hand, it's a great photo. So overall, I'd say that monkey rules.
posted by Greg Nog at 9:56 AM on August 6 [9 favorites]


Actually, the camera was left out for the monkeys to use intentionally by the photographer, so the "stolen camera" argument doesn't work.
posted by NoxAeternum at 9:57 AM on August 6


If someone steals your camera and shoots pictures of child porn .. you are not the proud owner of child porn. The camera was taken without his permission or intention, it's not the same as a motion trigger camera.

He brought the camera into the wild to take pictures of monkeys, and deliberately let the monkeys play with the camera to see what would happen. It is exactly the same as a motion trigger camera.
posted by localroger at 10:00 AM on August 6 [1 favorite]


He brought the camera into the wild to take pictures of monkeys, and deliberately let the monkeys play with the camera to see what would happen.

Yeah he may change his story on the circumstances of what happened.
posted by stbalbach at 10:03 AM on August 6


The only part I have a little trouble with is his argument that the trip was expensive and he needs the revenue from the photo to justify it.
But what if the monkey hadn't stolen the camera?
posted by hypersloth at 10:04 AM on August 6


If the cameras were intentionally left out by the photographer, then isn't this a sort of art installation piece? If his aim here was for the monkeys to take pictures, as an extension of his own design/vision, then my guess is that he owns the rights to what was produced from that.
posted by iamkimiam at 10:05 AM on August 6


An animal cannot own anything.

...said the animal at the keyboard.
posted by hippybear at 10:07 AM on August 6 [16 favorites]


If his aim here was for the monkeys to take pictures

The stories keep changing..
posted by stbalbach at 10:07 AM on August 6


An animal cannot own anything.

As a cat owner, I cannot disagree with you more. There is the law and there is the claw.
posted by srboisvert at 10:08 AM on August 6 [11 favorites]


So who holds copyright to all those wedding reception photos taken from the disposable cameras placed on every table? (yeah, it's been a while since I've been to a wedding, why do you ask?)
posted by klarck at 10:13 AM on August 6 [1 favorite]


This is interesting, since my first thought was that even if Slater doesn't own the copyright (and that's a huge, gigantic IF), why would it automatically be public domain rather than belonging to the person who had ownership or stewardship of the animal? But it seems that in the US, precedent clearly establishes that works created by animals do not have copyright inherent in them. I'm not sure if that's true everywhere, but it was an interesting thing to wonder about.
posted by jacquilynne at 10:14 AM on August 6


monkeys can't own the copyright

The monkey should immediately register as an LLC.
posted by elizardbits at 10:15 AM on August 6 [11 favorites]


The stories keep changing.

Too much monkey business.
posted by yoink at 10:16 AM on August 6 [1 favorite]


Kickstarter idea: Strap one million Go-Pros onto the backs of one million monkeys.
posted by Atom Eyes at 10:16 AM on August 6 [4 favorites]


This does not seem like an obvious case, one way or the other.

Simply owning and setting up the camera is not enough to grant copyright. A security camera that happened to record a dramatic event, for example, would not. But setting up a camera pointed at a storm specifically to fire the moment a flash of lightning was detected probably would.

This case is somewhere in between-- there's some creativity (Slater putting the camera in a situation where an animal might pick it up and press the shutter), but possibly not enough to make it a creative work (Slater had little creative control as to what the monkey would take a picture of, if anything. It was pure luck it happened to be a selfie.)
posted by justkevin at 10:17 AM on August 6 [2 favorites]


Whenever I post something on the internet, I make sure my monkey pushes the "post" button so I am not legally responsible for it anymore.
posted by notme at 10:18 AM on August 6 [7 favorites]


FWIW it's worth, Wikimedia Legal sided with the no copyright side when they evaluated this issue, so this is not merely some non-lawyers arguing to death on the internet.
posted by zachlipton at 10:19 AM on August 6 [5 favorites]


According to Slater in 2011: "One of them must have accidentally knocked the camera and set it off.. 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 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."
posted by stbalbach at 10:19 AM on August 6 [3 favorites]


Kickstarter idea: Strap one million Go-Pros onto the backs of one million monkeys.

After editing, you'll end up with one good filming of Hamlet.
posted by hippybear at 10:19 AM on August 6 [11 favorites]


An animal cannot own anything.

The whole thing is kind of interesting as a thought experiment about animals and the awkward in-between ways that we conceive of them as agents, legally and morally. The Wikipedians' claim only works if the macaque is granted just the right amount of agency — not too much, but not too little, either. If Slater had just tripped and pressed the shutter, or a rock had fallen on the camera and caused it to take a picture, they presumably wouldn't argue that the accident causing the shutter to snap removed his copyright in the resulting image. In the Wikipedian theory, the macaque has enough agency to take a picture, but she's still not entitled to own it.
posted by RogerB at 10:20 AM on August 6 [1 favorite]


... open to any reasonable participant is a myth, belied by the rules on meat-puppetry and campaigning, but more importantly by the obscurity and laboriousness of the process

So these people campaigned and managed to get all of four puppet friends to agree that the monkey owns the photo? It is not a myth that anyone can participate. The "laboriousness" amounts to clicking the edit button and typing.

This decision here is a really unusual and I think wrong, but it doesn't mean much in the big picture of wikipedia.
posted by bhnyc at 10:21 AM on August 6


Another thing to note is that the monkey pressed the shutter release hundreds of times, with most of the shots being blurred. Slater went through these images and curated the ones that were actually good. It's another precedent, and from the opposite side of the copyright sucks fence, that an arranged collection of images can itself be a protected work, even if the individual images are not owned by the curator.
posted by localroger at 10:21 AM on August 6 [6 favorites]


Hail Eris!
posted by symbioid at 10:25 AM on August 6 [3 favorites]


It's another precedent, and from the opposite side of the copyright sucks fence, that an arranged collection of images can itself be a protected work, even if the individual images are not owned by the curator.

But that would protect him from people curating the same collection but not from reproducing that one individual image, no?
posted by yoink at 10:25 AM on August 6




See Also: Ellen's Selfie

So if Bradley Cooper is a monkey, Slater clearly doesn't own copyright. I believe the controlling case is The State of Tennessee v. John Thomas Scopes.

("John Thomas"? Seriously?)
posted by yoink at 10:28 AM on August 6


It is not a myth that anyone can participate.

Yeah, it is. In theory, anyone can participate; but in reality, the Byzantine mess of Wikipedia rules ensures that only insiders get to participate in the governance process.
posted by NoxAeternum at 10:33 AM on August 6


guys what if maybe the photo owns the monkey

think about it
posted by shakespeherian at 10:42 AM on August 6 [7 favorites]


WELL SOME PEOPLES BELIEVED THAT A PHOTOGRAPH WOULD STEAL YOUR blah blah you get it.
posted by Navelgazer at 10:49 AM on August 6


This situation reflects a common confusion about how copyright works. Most people think that copyright protects the hard work that the author (or painter or photographer or whatever) put into the work. That's what Slater seems to think when he talks about how much money he put in to equipment, travel, etc. But that's not the way it works (at least in the US). The Supreme Court explicitly rejected the "sweat of the brow" doctrine in _Feist v Rural Telephone Service_. Instead, copyright is supposed to protect originality (creativity). What creativity did Slater put into this photo? The idea of letting monkeys play with the camera? If so, then wouldn't he also own the photos of anyone else who does the same thing? Maybe the creativity would be in the selection of this image over the rest -- except that he already said that the rest were unusably blurry. The editing/postprocessing? Maybe, but it seems like that stuff is pretty standard here.

So, Wikimedia's position here is much stronger than it initially seems.
posted by novalis_dt at 10:54 AM on August 6 [1 favorite]


My understanding is that although legally the monkeys are not allowed to hold the copyright, they are allowed to impose their religious views about women's contraception on their employees.
posted by notme at 10:54 AM on August 6 [30 favorites]


NoxAeternum: This highlights one of the biggest problems with the anti-copyright crowd: an unwillingness to consider that other people might have a differing opinion, and that they might make a different choice from them.

In contrast, the folks over at Debian, some of the most militant copy-lefters around, are generally quick to reject anything with questionable copyright status: exactly the opposite of what we see here. The "anti-copyright crowd" has many different takes on issues like this, some of them as fuzzy as the rest of the pictures that the monkey took.
posted by clawsoon at 10:57 AM on August 6


Are we sure the photographer didn't just make the story up about the monkey taking the photo? I think dude might just be mad that the story he cooked up to get the photo published also lost him the copyright.
posted by Space Coyote at 11:00 AM on August 6 [7 favorites]


If Wikipedia's argument made any sense, wouldn't Wikipedia need to get permission from the monkey? Not being able to get permission is not the same thing as having permission.
posted by SpacemanStix at 11:10 AM on August 6 [4 favorites]


I'd just like to thank this dispute for helping me see one of the greatest photos of all time, again.
posted by colie at 11:10 AM on August 6 [2 favorites]


The problem with applying _Feist_ is that it essentially makes nature photojournalism untenable. While the argument is that the creativity in photography is the composing etc. it very often happens, as in this case, that the most dramatic images just happen and you have the good fortune to push the shutter release at exactly the right time. The creativity is actually choosing a location and subject -- and in this case, nobody disputes that Slater was there to take pictures of monkeys.

At this point, now that this is already the most famous picture he's ever taken, I wonder how the Wikimedians would react if he just said "hey, my bad but you idiots really fell for that story about how the monkey took its own picture? Well that was a great story but it's still my picture that I took and stop telling people they can use it for free."

Ignoring of course the other pictures that do corroborate the selfie theory, how do you defend your use of the picture then? Subpoena the macaque? There's nobody with standing to dispute Slater's claim, and only he knows the real story. Maybe that's the one photo in the bunch he took when the monkey handed him the camera, mugged for him, and he handed it back.
posted by localroger at 11:12 AM on August 6 [1 favorite]


If Wikipedia's argument made any sense, wouldn't Wikipedia need to get permission from the monkey?

No. The US Copyright Office says: Human author. The term "authorship" implies that, for a work to be copyrightable, it must owe its origin to a human being. Materials produced solely by nature, by plants, or by animals are not copyrightable.
posted by zsazsa at 11:15 AM on August 6 [1 favorite]


Too much at stake.
posted by prize bull octorok at 11:18 AM on August 6


I think dude might just be mad that the story he cooked up to get the photo published also lost him the copyright.

He can't win. Either his best-ever, famous, unsurpassable photo was taken by an ape, or he's a liar. Wikipedia looks at best ridiculous. Only the ape wins, which is cool.
posted by colie at 11:27 AM on August 6


Materials produced solely by nature, by plants, or by animals are not copyrightable.

And the image on display wasn't solely produced by a (monkey) animal. Part of the photographer's point is that not only was there the mechanical act of the shutter button being depressed, but the time he spent sifting through the collection of images to find the good ones, plus whatever post work he did in Photoshop or Lightroom or whatever to improve the composition.

So as I understand it, he's saying he introduced the modicum of creativity required to make the image his, even if the "original" image, snapped by a monkey, couldn't have had an owner.

I'd think that argument meets the standard suggested by Feist vs. Rural.
posted by mph at 11:41 AM on August 6 [2 favorites]


localroger, it's not that the level of protection depends on the level of creativity, but that some minimal level of creativity grants all the rights. This is weird, but not untenable. And yes, some of what we call creativity is luck, but that's true in any field.
posted by novalis_dt at 11:43 AM on August 6


One thing that is clear is that Slater hasn't done himself too many favors here. As soon as he realized his most famous picture was in such a dispute he should have researched the law -- Feist is in fact very important even though there isn't much relationship between a phone directory and nature photojournalism, but it's the precedent -- and he should have phrased his story appropriately.

This photo was taken as part of a project to document this macaque troop. One of the many techniques used was, when the apes showed interest in the camera equipment, was to not interfere as they explored it. When they discovered the shutter release I made the conscious artistic decision to see what images might result. Imagine my delight when among hundreds of blurred and uninteresting shots my experiment yielded this. Oh, sure, I did once say "the monkey took the picture" but of course it was my artistic decision to see what the monkey would do with the camera instead of immediately moving to retrieve it.

I know a number of people who do serious nature photography and all of them would be horrified at Slater's situation. A strict interpretation of the clause zsazsa quotes would, for example, put almost all of these in the public domain, which is insane. And if the act of siting the cameras for Chasing Ice is enough creativity to protect the pictures that were taken by a timer during Balock's months of absence, then Slater's case should be pretty strong too.

Unlike Feist, who just copied a phone book, Slater went into a carefully chosen but unpredictable situation hoping to score images; this was his creative input, not the composition and framing of individual shots. One way he got his camera in the right place at the right time, instead of putting it on a timer or at the end of a laser beam, was to let the apes manipulate it. If he doesn't own that image then there are a lot of others out there that nobody realizes are equally questionable.
posted by localroger at 11:46 AM on August 6 [8 favorites]


Photography is not pressing a button. It involves:

- equipment selection
- locating, traveling to and preparing the setting
- Composition, lighting, and other choices relating to equipment and setting
- Pushing the fucking button
- Editing the shoot into a single image that distill the artist's intent
- Processing the image to correct flaws, improve composition, etc.

Here, the photographer did everything except push the fucking button. Unless it can be clearly proven the monkey had intended to make an image, it's simply acting as a more unique remote trigger than most.

Wikipedia's assertion is evil and anti-culture, and does a disservice to the entire field of photography as a legitimate medium of artistic expression in its quixotic crusade against copyright.
posted by Slap*Happy at 11:48 AM on August 6 [11 favorites]


I think he's just pissed that a monkey did a better job than he did.
posted by ChurchHatesTucker at 11:49 AM on August 6


I fall into the camp of seeing this as an uncopyrightable work, but the particulars here aren't as interesting as the way this case underscores how poor a system copyright is with regards to photography, and by extension, most creative endeavors. I know that photographers have fought a long battle to have their work valued as an artistic production and not a mechanical one, but the fact is that while there can be artistic intent in the selection of subject and material and especially in post-capture manipulation, photography in fact does remain largely the domain of chance, optics, and mechanics. Obviously there is a wide range, from a randomly captured still in an unmanned video feed to a posed and lit studio shot that is then heavily tweaked in Photoshop, but we have one law that is supposed to cover all pictures regardless of methodology, intent, or eventual presentation. Copyright as originally formulated was meant to regulate printing presses, and as it was applied to media other than the written word and to reproduction other than paper-and-ink it has become more and more broken.
posted by Trace McJoy at 11:53 AM on August 6 [1 favorite]


Assuming that evolution is true and that the existing trend in copyright law does not change, then that monkey's descendants may well one day evolve the ability to hire lawyers to sue his estate retroactively for the rights to this work. It might be cheaper to settle now.
posted by Poldo at 11:53 AM on August 6 [5 favorites]


evolve the ability to hire lawyers

Darwin would so love this. As will lawyers.
posted by colie at 11:55 AM on August 6 [2 favorites]


Wikipedia's assertion is evil and anti-culture

I understand that people who support a maximalist position for copyright holders' rights believe that what they're doing is in the best interest of artists; however, those of us who question the current scope of intellectual property are primarily motivated by concerns over the way that it suppresses culture, both in the production of new works and in the dissemination of existing works.
posted by Trace McJoy at 12:02 PM on August 6 [9 favorites]


[P]hotography in fact does remain largely the domain of chance, optics, and mechanics. Obviously there is a wide range, from a randomly captured still in an unmanned video feed to a posed and lit studio shot that is then heavily tweaked in Photoshop, but we have one law that is supposed to cover all pictures regardless of methodology, intent, or eventual presentation.

Writing in fact does remain largely the domain of vocabulary, syntax, and grammar. Obviously there is a wide range, from a quickly-written hand-penciled note to a glossy pamphlet that's been heavily edited and process in Word, but we have one law that is supposed to cover all writing regardless of methodology, intent, or even presentation.
posted by cjelli at 12:05 PM on August 6


Copyright as originally formulated was meant to regulate printing presses

Printing presses were reproducing artwork from the beginning, and was the medium of choice for some fine artists since the fifteenth century.

Here's the deal - you want to look at the funny picture the monkey took, and you don't want to pay for the privilege. Wikipedia doesn't want to pay the artist who's work and investment in equipment, travel and time made the funny monkey picture possible in order for you to look at the funny monkey picture. Neither position is legally feasible, without some handwaving about monkey-rights, denigrating photography as an art form, or undermining the rights of artists to be paid for their work and investment (copyright.)

It's an indefensible argument that's ahistorical and insulting and bankrupting to working artists.

This isn't even a grey area, as in repurposing art via collage or music sampling. It's flat out, no-kidding infringement (not to be confused with piracy or theft, as the MPAA does.)
posted by Slap*Happy at 12:07 PM on August 6 [4 favorites]


Assuming that evolution is true and that the existing trend in copyright law does not change, then that monkey's descendants may well one day evolve the ability to hire lawyers to sue his estate retroactively for the rights to this work. It might be cheaper to settle now.

Somebody in Hollywood just read this and is rushing to draft yet another blockbuster movie sequel:
[insert clever "...of the Planet of the Apes" title here].
posted by fuse theorem at 12:09 PM on August 6


Oops, sorry, was missing this link from the quote.

Ha. Missing link. I see what you did there.

No way the photographer holds copyright on this image based on preexisting law. If he IS found by some court to hold a copyright here, which is conceivable (but not likely), that court would be breaking entirely new ground in doing so. And that's about all you can reasonably say about the legalities here.
posted by azaner at 12:09 PM on August 6 [1 favorite]


It's an indefensible argument that's ahistorical and insulting and bankrupting to working artists.

Meh. A monkey could do it.
posted by ChurchHatesTucker at 12:12 PM on August 6


According to the transparency report, they received 304 DMCA takedown requests, and granted zero of them. Wikipedia Legal's job isn't to present a balanced view of the situation, it's to aggressively defend Wikipedia from any and all DMCA requests.
posted by miyabo at 12:12 PM on August 6 [2 favorites]


Writing in fact does remain largely the domain of vocabulary, syntax, and grammar. Obviously there is a wide range, from a quickly-written hand-penciled note to a glossy pamphlet that's been heavily edited and process in Word, but we have one law that is supposed to cover all writing regardless of methodology, intent, or even presentation.

You may think that this is a riposte to my position, but I agree with all of this. Technically, a laundry list is as subject to copyright as is Infinite Jest, but that's dumb. In any case, there is a fundamental problem with the idea of copyright, and that is that novelty is the most valuable thing in art and it must be rewarded and the way to reward it is through granting exclusive rights.
posted by Trace McJoy at 12:13 PM on August 6


Wikipedia Legal's job isn't to present a balanced view of the situation, it's to aggressively defend Wikipedia from any and all DMCA requests.

Which is to their credit. Almost everyone else rolls over when they get even barely coherent takedowns.
posted by ChurchHatesTucker at 12:14 PM on August 6 [1 favorite]


Pay Rise of the Planet of the Apes
posted by colie at 12:16 PM on August 6


Printing presses were reproducing artwork from the beginning, and was the medium of choice for some fine artists since the fifteenth century.

Sure, just as copying the work of masters has been part of artistic training for as long as we have records. In fact, it's only through copies that we even have the most famous Classical statuary, or any written works from antiquity. It's too bad that Copyright wasn't applied to visual arts until the 20th century, which is why we have no paintings from before 1900 and no one ever made a living as an artist.
posted by Trace McJoy at 12:19 PM on August 6 [4 favorites]


According to the transparency report, they received 304 DMCA takedown requests, and granted zero of them.

Specifically regarding the DMCA, they received 58 takedown requests, granting 41% of them in that time period. I assume that other page is for other, less formal takedown requests.

While I'd say Wikipedia's application of fair use in many circumstances is overly broad, I wouldn't say they're anti-copyright. Things get taken down from Wikipedia for copyright reasons almost constantly, completely voluntarily, before any DMCA requests are sent.
posted by zsazsa at 12:20 PM on August 6 [2 favorites]


If only it had been a wildebeest selfie. Then it would clearly have fallen under the Gnu public license.

More seriously, this seems to me to be a genuinely grey area. Copyright applies to creative acts, but also to creative acts that can consciously include randomness. If I'm recording atmospheric signals - lightning strikes, ionospheric noises, auroral radio emissions - and my radio equipment is accidentally triggered by, say, the first signal from the Klingon vessel come to invade Chipping Sodbury, then I would have a high expectation that my historic recording is covered by copyright even if I didn't open the squelch and trigger the capture by hand. But I accept that this may not be the case (a lot may depend on how good Klingon lawyers are) because this wasn't what I set out to do. The random events I captured, like a photograph of the sea, are clearly now mine. On the other hand, if I was creating 'the sounds of the universe' rather than 'sferics' I think it's clearer... but this is the sort of hard case that traditionally does end up in court.

Copyright, and IP law in general, is no repository of common sense. It can be just as apparently contradictory and unfair as any human law, when you get outside the simple cases.

Out of interest, I suspect that if the camera owner had cropped the image before releasing it, or in any substantial way treated it, then the situation becomes a lot less ambiguous. The original image may not be copyright once published: before it's published, then that's a moot point. (Although for intense fun, check out the copyright position of unpublished manuscripts of any age in archive collections: in the UK at least, they are automatically copyright no matter how old, and I think will be until some point in the 2030s.)
posted by Devonian at 12:21 PM on August 6 [2 favorites]


Technically, a laundry list is as subject to copyright as is Infinite Jest, but that's dumb.

No, not necessarily: lists of things are often not subject to copyright in the U.S. -- a list of ingredients isn't copyrightable, for example.
posted by cjelli at 12:22 PM on August 6 [2 favorites]


and my radio equipment is accidentally triggered by, say, the first signal from the Klingon vessel come to invade Chipping Sodbury, then I would have a high expectation that my historic recording is covered by copyright

I think the Klingons might have a thing to say about that.

And Paramount might have a thing to say about this.
posted by ChurchHatesTucker at 12:23 PM on August 6


metafilter: evil and anti-culture
posted by el io at 12:28 PM on August 6


I did say it depended on how good the Klingon lawyers are. But to quote from a very old "Technology of Star Trek" book hovering at the limits of my memory, as the authors said about the specifications of the Enterprise's computers: "We don't know. We don't want to know." I learned about the limits of acceptable geekery among fellow geeks from that.
posted by Devonian at 12:28 PM on August 6


All he had to do was pay the monkey and it becomes a work for hire and he owns the copyright.
posted by blue_beetle at 12:34 PM on August 6 [1 favorite]


So, if infinite monkeys painted for infinite amount of time and all the cartoons of say, Walt Disney, came out of it ...

who would own the copyright?

It will be an interesting lawyer fight though :).
posted by TheLittlePrince at 12:35 PM on August 6


If anybody is interested in any supplemental reading, I highly recommend "The Photographer's Copyright—Photograph as Art, Photograph as Database" (PDF) by Prof. Justin Hughes, published in Harvard Journal of Law & Technology, Vol. 25, No. 2, Spring 2012, pages 327–416. (Note the permission at the bottom of the first page.) It's a long article and I can't guarantee non-lawyers will understand every last bit of it, but as law review articles go it's very readable.
posted by cribcage at 12:36 PM on August 6 [4 favorites]


I can't tell anything about that monkey without a banana for scale.
posted by T.D. Strange at 12:39 PM on August 6 [2 favorites]


It's an indefensible argument that's ahistorical and insulting and bankrupting to working artists.

I honestly find this position bewildering. I have worked as a freelance designer and illustrator, a fine artist, a staff designer, and now as a museum professional who regularly designs catalogs. As someone who has worked in all positions in good faith and sought permissions and paid licenses whenever required, not a day goes by that I don't find myself stifled by copyright: unclear over who holds rights, dealing with people asserting rights they do not have, and the constant fear that I will violate a copyright unintentionally. On top of that there is so much derivative and remix culture we could have, but don't, because we have decided that the rights of the originator trump all, even if that originator is using pre-exisiting tools, forms, tropes, techniques, genres, or other cultural building blocks.
posted by Trace McJoy at 12:42 PM on August 6 [5 favorites]


I honestly find this position bewildering.

You find the idea that photographers be paid when their works are published bewildering?
posted by Slap*Happy at 12:54 PM on August 6 [2 favorites]


I know! AFAICT, the monkey got squat.
posted by ChurchHatesTucker at 12:57 PM on August 6


You find the idea that photographers be paid when their works are published bewildering?

I find the idea that a perfectly reasonable objection about the authorship of a work is construed as an insult to artists.
posted by Trace McJoy at 1:05 PM on August 6 [3 favorites]


I find the idea that a perfectly reasonable objection about the authorship of a work is construed as an insult to artists.

Your assertion that photography is on a lesser plane than "real" art and therefore less deserving is insulting - and is the same argument being made by Wikimedia. This is a tired old anti-cultural argument long since won by Stieglitz, and displays a shocking lack of awareness of what goes into making a photograph. You are arguing from either ignorance or snobbishness, neither place a particularly compelling place to make your stand.
posted by Slap*Happy at 1:13 PM on August 6 [3 favorites]


Your assertion that photography is on a lesser plane than "real" art and therefore less deserving is insulting

It certainly would be, had I ever made such a claim.
posted by Trace McJoy at 1:17 PM on August 6


It certainly would be, had I ever made such a claim.

You, earlier:
I know that photographers have fought a long battle to have their work valued as an artistic production and not a mechanical one, but the fact is that while there can be artistic intent in the selection of subject and material and especially in post-capture manipulation, photography in fact does remain largely the domain of chance, optics, and mechanics.
posted by NoxAeternum at 1:22 PM on August 6 [1 favorite]


Photography is not pressing a button. It involves:

- equipment selection


Monkey

- locating, traveling to and preparing the setting

Human, human, monkey.

- Composition, lighting, and other choices relating to equipment and setting

Monkey

- Pushing the fucking button

Monkey

- Editing the shoot into a single image that distill the artist's intent

Sweat of the brow doesn't fly in the US.

- Processing the image to correct flaws, improve composition, etc.

Bullshit. Someone else doing that to your image doesn't count.


Advantage, Monkey.
posted by ChurchHatesTucker at 1:27 PM on August 6 [3 favorites]


It's a shame --- now even photography is being outsourced.
posted by goethean at 1:36 PM on August 6


My point is that when photography was on the cusp of gaining acceptance as an art, rather than "merely" a scientific curiosity, photographers like Man Ray, Brassai and Moholy-Nagy tried to emphasize the agency of the photographer via studio works that were "painterly" in approach and effect. But a great deal of the strength of photography lies in the things that are outside of the artist's control, which is most typified by Cartier-Bresson and his school. I point this out not to categorize photography as "just" craft, but to point out that as an art it relies heavily upon the play between intention and accident. As does all art, to a greater or lesser extent. And when art does not rely upon accident, it relies upon formal traditions, or academic technique, or dialog with existing art, or myriad other things that did not originate with the artist. So I'm not saying that photography is different from other art and thus less deserving of copyright (which is a strange way of valuing the work). I'm saying that the ultimate value of any work of art is not merely or even primarily due to "authorship" and that fact makes the entire project of copyright problematic.
posted by Trace McJoy at 1:38 PM on August 6


Now you're just insulting every artist ever, arguing that their work is either the result of happenstance or merely a construction of existing elements - and thus how can the artist assert ownership? You are outright denying artists the value of their labor, because acknowledgement of that labor would require acknowledgement of their stake in the product.
posted by NoxAeternum at 1:49 PM on August 6 [2 favorites]


This case is unusual in that it relies so heavily on primate facie evidence
posted by Flashman at 1:59 PM on August 6 [7 favorites]


A little more background. The FPP links to the kottke front page but refers to a specific post. Here's a permalink to the specific post just for the sake of posterity.

In 2011, shortly after the photo was created, Techdirt posted it without Slater's permission. Slater had licensed it to an agency that then issued Techdirt a takedown request. Techdirt insisted that the photo was in the public domain.

I'm not sure how things were eventually settled, but the picture is still present in the first Techdirt post that I linked.

The reason this is in the news right now is because the Wikimedia Foundation just released its first transparency report, and it described Slater's takedown request in a case study.
posted by compartment at 2:24 PM on August 6


But it's not 'the value of their labour". There are a lot of very hard working artists in all fields of creative endeavour who produce nothing but unsaleable trash. There are (far, far fewer) geniuses who can create something of entrancing, obvious worth without breaking into a sweat. In the middle ground, all those who work hard to improve their art and make more-or-less marketable results by dint of multiplying talent by effort. And, tastes being what they are, perceived value of any of the above can change dramatically over time.

It's clear to me that while 'labour' is a component of art, it does not confer value by itself or even necessarily at all. IP is a mechanism for realising whatever value is in a work, but it is imperfect and unfair in many cases. More importantly, it is a set of rules for realising values and not all the values it sets out to realise are those immediately beneficial to the creator - far less, as this case may well show, to the enabler.

In most cases, even art forms like photography that do involve a large dose of happenstance, are fairly easy to decide. There was an explicit act by the creator, decisions were taken thereafter, and (regardless of the labour or skill of the creator) a result. Zapruder certainly didn't set out to capture what he did, but it's his copyright. But as we know, the act of putting up a security camera does not make everything that's captured thereafter a creative act belonging to whoever caused the camera to be put in place. If I stuck a camera out of my apartment window with the intent of producing some Warholian twelve-hour street scene, though, the act is creative (and unsaleable trash).

The case where a monkey takes a photo is not one where the rules are easy to apply, no matter how much hard work the human put in when setting things up. This does not mean that those who think that this case should be decided one way or another are either hell-bent on making the lives of photographers even worse than they are, or that they're seeking to put the art of photography into this or that category.

This is an interesting exercise in philosophy, culture and law, especially amplified by the current exciting times we're all enjoying now that the Global Photocopier is working so well. It won't be the last, as machines get better at applying visual rules to image capture and the "who owns all this data, anyway?" problem blossoms into full monster, but it's not the Wikihood eating children or a photographer being a complete arse. It's subtle, difficult and - for nearly everyone - of little immediate consequence.
posted by Devonian at 2:31 PM on August 6 [2 favorites]


"Art has aspects of chance, convention, and mechanics" does not equal "artists contribute nothing to art."

"Copyright may not be the best tool for encouraging the production and distribution of art" does not equal "I hate artists and want their children to starve."
posted by Trace McJoy at 2:44 PM on August 6 [2 favorites]


So tell me, what would be a better system, that balances all the competing interests?
posted by NoxAeternum at 2:52 PM on August 6


The answer to a critique of the current copyright system really shouldn't be "please redesign it such that your new system is closer to perfection."
posted by Carillon at 2:56 PM on August 6 [1 favorite]


Well, for most of human history when there was no copyright, you had patronage, sale of original art, teaching, work-for-hire. There were many artists who made a lot of good art, some of it the best art there is, without copyright. But you have me wrong if you think that I want to do away with copyright entirely; I think fewer but more clearly defined rights along with broader Fair Use would go a long way towards a better system. Also artists should stop claiming other primates' work as their own, that's just plagiarism.
posted by Trace McJoy at 3:00 PM on August 6


I think the current copyright system works pretty well. Except for when a monkey uses your camera and you sell the pictures. That's an edge case I'm willing to look over.
posted by zsazsa at 3:01 PM on August 6 [3 favorites]


Why not, especially if the person is arguing that there must be a better way?
posted by NoxAeternum at 3:01 PM on August 6


Mainly for the same reasons that I don't need to be a published author to critique a book I'm not fond of?
posted by Carillon at 3:03 PM on August 6


Can we now replace, "jumped the shark" with, "shot the monkey"? Or would Peter Gabriel sue?
posted by ryoshu at 3:05 PM on August 6


Well, for most of human history when there was no copyright, you had patronage, sale of original art, teaching, work-for-hire. There were many artists who made a lot of good art, some of it the best art there is, without copyright.

And yet we moved to copyright. I don't think that was happenstance, nor do I think it was due to some scheme - I think it was because it better managed the competing interests than those prior systems (which, mind you, are all still in use today.) Pointing to the past isn't an argument.
posted by NoxAeternum at 3:08 PM on August 6 [1 favorite]


Mainly for the same reasons that I don't need to be a published author to critique a book I'm not fond of?

That would be a comparison between apples and bananas. The reason why it's a valid point in this case is because the argument is that copyright is an inferior system, which presumes that there must be a superior one.
posted by NoxAeternum at 3:13 PM on August 6


Right but we're not necessarily talking about building a superior system of copyright. It's possible for something to be a bad way of doing things but also to be the best way of doing things. Simply saying this isn't a great way to manage competing interests doesn't mean I then have to construct a whole new system either.
posted by Carillon at 3:22 PM on August 6


Something I just thought of: the photo is much more interesting because the monkey took it. Otherwise it's just a close up and there are tons of those. The value of the photo is therefore largely because it wasn't taken by a human. team monkey
posted by 2bucksplus at 3:33 PM on August 6 [9 favorites]


The actual situation here is admittedly an edge case under current law. I really don't think the Feist ruling was intended to apply to this sort of thing; in that case someone was trying to copyright a practical tool, the phone book, and excluding it because it's just a list looked like a good way to do that. In those days there was no such thing as automated photography or, another place this is likely to come up, algorithmically generated fractal art.

What is not an edge case is that a large public foundation is using its bully pulpit to destroy the most successful work of a small businessman's career in order to make a political point.
posted by localroger at 3:35 PM on August 6 [4 favorites]


the most successful work of a small businessman's career

Was taken by a monkey. Maybe another line of work is in order.
posted by ChurchHatesTucker at 4:15 PM on August 6


the most successful work of a small businessman's career

That's begging the question. We're arguing if this is, in fact, his work.
posted by Trace McJoy at 4:21 PM on August 6 [1 favorite]


What is not an edge case is that a large public foundation is using its bully pulpit to destroy the most successful work of a small businessman's career in order to make a political point.

A large public foundation (~$60M/year, largely in software development and infrastructure costs, isn't really all that large to be honest, but certainly much larger than a solo photographer's business) that sticks up for the commons and public domain as a key part of its mission.

Your preference upon encountering a weird edge case like this one is clearly to give the benefit of the doubt to the artist, apparently because art is a good thing and artists getting paid is a good thing too. That's fine, but it's not really the way the law works. The really unfortunate thing is that there's no way to resolve this problem without spending an enormous amount of time and money on legal fees.
posted by zachlipton at 4:31 PM on August 6


Wikipedia erring on the side of not immediately deleting a useful image that potentially, in the absolute worst case scenario, might not be public domain? Is this Bizarro Wikipedia?
posted by pravit at 4:55 PM on August 6


Either his best-ever, famous, unsurpassable photo was taken by an ape, or he's a liar. Wikipedia looks at best ridiculous. Only the ape wins, which is cool.

Monkeys are not apes. Look it up.
posted by hippybear at 6:35 PM on August 6 [3 favorites]


We're arguing if this is, in fact, his work.

If you can show the receipts where the monkey paid for his plane fare and rented the camera, then I will admit the photo is the monkey's work. Otherwise it's the photographer's.
posted by localroger at 6:51 PM on August 6


That's fine, but it's not really the way the law works. The really unfortunate thing is that there's no way to resolve this problem without spending an enormous amount of time and money on legal fees.

I suppose that is the real-est problem. None of the case law really addresses anything like this at all, because it's really only possible with relatively new technology. Feist looks like it addresses this, because the words fit, but when you look at the reasoning it's a whole different thing and it's very likely a modern court familiar with modern technology would create a new exception, just as the Feist ruling did in its day for other reasons.

But to get that case in front of the judge who can consider making such a ruling will cost somebody tens of thousands of dollars at minimum, and nobody involved has pockets that deep. So we sit here arguing about it, one camp hating copyright in general (and for well considered reasons) and the other hating the idea that somebody does hard work and gets screwed because of the letter of a judgement written by people thinking of phone books instead of modern automation technology.

Even the monkey doesn't win, because it loses its soul to the camera. It will never even know the trouble it has caused or the vastness of its monkey's paw reach.
posted by localroger at 6:59 PM on August 6 [5 favorites]


It will never even know the trouble it has caused or the vastness of its monkey's paw reach.

Beware the monkey's paw.

It knows... oh it definitely knows...
posted by hippybear at 7:22 PM on August 6


If you can show the receipts where the monkey paid for his plane fare and rented the camera, then I will admit the photo is the monkey's work.

The monkey is not a legal person. Literally Nobody Took that shot.
posted by ChurchHatesTucker at 7:35 PM on August 6


Literally Nobody Took that shot.

Nature photographers have been using motion detection camera triggers in their wildlife photography for decades. The animal's actions cause their own picture to be taken. You gonna go tell NatGeo they're all public domain now because you think you found a loophole? Lotsa luck, chuck.
posted by Slap*Happy at 10:03 PM on August 6 [3 favorites]


Well, for most of human history when there was no copyright

And there wasn't any universal suffrage or antibiotics, neither! Such a golden age.
posted by Slap*Happy at 10:07 PM on August 6 [1 favorite]


It knows... oh it definitely knows...

So that's why it's smiling?
posted by localroger at 5:13 AM on August 7


that monkey's descendants may well one day evolve the ability to hire lawyers

Devolve.
posted by zarq at 8:28 AM on August 7 [1 favorite]


Nature photographers have been using motion detection camera triggers in their wildlife photography for decades. The animal's actions cause their own picture to be taken. You gonna go tell NatGeo they're all public domain now because you think you found a loophole? Lotsa luck, chuck.

Well, this gets into interesting territory having to do with agency, intention etc. But while philosophers could argue the toss back and forth for ever there seems to me a perfectly defensible distinction between setting up a camera and a motion-detecting trigger with the explicit intention of capturing whatever photos result from the trigger being activated and having your camera stolen with no intention on your part and photos happening to result from that event. If that monkey had taken an upskirt photo of some nearby tourist, would the photographer be legally liable? If you say "of course not" then why is he also obviously the owner to the rights of the engaging selfie the monkey did happen to take?
posted by yoink at 8:38 AM on August 7


If he published the upskirt photo, he would absolutely be on the hook legally, as pushing the fucking button does not a photograph make. If he dropped the camera, and it took an accidental upskirt in the process of bouncing off the pavement, he would not be on the hook - unless he published the resultant photo. Photography is the process of recording an image, and there are many steps before, during and after pressing the shutter release.
posted by Slap*Happy at 9:23 AM on August 7 [2 favorites]


If he published the upskirt photo, he would absolutely be on the hook legally

But publication is only tangentially related to the question of rights. If I found an upskirt photo on the internet and then published it I could be prosecuted for the publication without anyone thinking that that implied I owned copyright on that image. You're obfuscating the question rather than clarifying by bringing the issue of publication in.

The Oscars selfie issue linked above in this thread is a clarifying one. Ellen Degeneres owned the camera that took the photo. She arranged for the photo to be taken. She instructed Bradley Cooper to take the photo. She both arranged for and permitted the photo to be published. But the rights to the image belong to Bradley Cooper. Why? Because those rights went to him simply for "pushing the fucking button."
posted by yoink at 9:32 AM on August 7


If I found an upskirt photo on the internet

This isn't making a photograph.

And, to continue with this odious line of reasoning, if I were to hide a camera in a paver with a pressure-sensitive trigger I wouldn't be liable for upskirts, as the woman took her own image and published it to the internet?

Another, less offensive but more relevant issue - lightning isn't a person. Yet light-sensitive shutter releases are used to capture lightning. Since literally nobody pressed the fucking button, are they in the public domain? No. If no-one intentionally pressed the shutter, then the responsibility for the making the photograph rests on the legal entity (of which a monkey is not one under copyright law) who did everything beside push the fucking button. This is why people are liable for setting up hidden cameras in bathrooms - their intent and effort in setting up the shoot is legally recognized. even if "nobody" pressed the button.

The Bradley Cooper piece linked above is referring to the "second shooter" or assistant photographer, who is indeed copyright holder unless contractually work for hire. I think accepting the monkey as a valid second shooter would involve legal enfranchisement of the monkey as an equal participant in society - something it's biologically incapable of, even if it were so inclined.

Never in my life have I seen people so eager to strip away the rights of a working artist to make a living so they can look at crap on the internet for free. I'm actually a big supporter of copyright reform, but this is way too much horse-shit to be tolerated in the name of it.
posted by Slap*Happy at 9:59 AM on August 7 [1 favorite]


Another, less offensive but more relevant issue - lightning isn't a person. Yet light-sensitive shutter releases are used to capture lightning.

No, that would be along the lines of a camera trap. The intent is there.

Never in my life have I seen people so eager to strip away the rights of a working artist to make a living so they can look at crap on the internet for free.

I'm sure he's taken his own photos. Nobody is disputing those.
posted by ChurchHatesTucker at 10:04 AM on August 7 [1 favorite]


This isn't making a photograph.

No, indeed. You seem to be so passionate about this issue that you can't quite be bothered to read the argument I'm making. I'm saying that making a photograph and publishing a photograph are two legally and practically separable issues and that you oughtn't to confuse one with the other.

if I were to hide a camera in a paver with a pressure-sensitive trigger


That would clearly be the same as setting up the camera with a motion-sensitive trigger which I have already agreed is legally clear. Again, try actually reading what I have written. Here, I'll cut and paste the relevant bit for you:
there seems to me a perfectly defensible distinction between setting up a camera and a motion-detecting trigger with the explicit intention of capturing whatever photos result from the trigger being activated and having your camera stolen with no intention on your part and photos happening to result from that event.
So examples analogous to the "motion-detecting trigger" (like a lightning activated shutter or a pressure-activated shutter etc.) really aren't relevant here.

I think accepting the monkey as a valid second shooter would involve legal enfranchisement of the monkey as an equal participant in society


No one is (seriously) trying to claim that the monkey owns the copyright. They are saying that the photo in question has no copyright owner because it was taken by an agent who cannot legally be granted those rights. The point about the Ellen Degeneres situation is not to say "look, the monkey is just like Bradley Cooper" the point is to say "look, Slater is just like Ellen Degeneres." He cannot claim automatic ownership of the copyright of the image simply because he owns the camera it was taken with--which was the sole part he played in the image's creation.

Never in my life have I seen people so eager to strip away the rights of a working artist to make a living so they can look at crap on the internet for free


I'm a strong defender of copyright and if you look at my participation in any threads on IP issues here on Metafilter you'll see that I'm usually regarded as an evil Disney shill by the "information wants to be free" crowd. The issue isn't about whether photographers in general should have the right to claim copyright over their work. The issue is about the appropriate legal understanding to bring to this one rather unique case. There is no way this photographer went into the business thinking his livelihood depended on being able to assert copyright over works taken by animals that stole his camera. Given that having an animal steal your camera is an inherently unpredictable and uncontrollable accident, there is no way that a legal ruling on this issue one way or the other could be said to have any serious implications for the ability of photographers in general to make a living by their work.
posted by yoink at 10:23 AM on August 7 [1 favorite]


Without strong copyright, what's going to incentivize monkeys to take pictures?
posted by ChurchHatesTucker at 10:33 AM on August 7 [1 favorite]


Shutter buttons that smell like bananas. It's the free market at work!
posted by Holy Zarquon's Singing Fish at 10:37 AM on August 7


Interestingly, Mike Masnick over at Techdirt (which also considers the photo public domain) suspects that the monkey didn't actually take the picture.
posted by ChurchHatesTucker at 11:05 AM on August 7




Shutter buttons that smell like bananas. It's the free market at work!

Wouldn't making the camera smell like a tasty treat just result in a monkey chewing on it?
posted by zarq at 11:41 AM on August 7


The moral of the story is, if a monkey steals your camera and takes a great selfie, the first thing you should do is post that picture to instagram and twitter, with the caption "Look at this awesome picture I TOOK of this beautiful monkey."
posted by MeanwhileBackAtTheRanch at 7:49 PM on August 7


NoxAeternum: "So tell me, what would be a better system, that balances all the competing interests?"

There are a lot of ways in which copyright is fundamentally broken. The most serious of which is the move to perpetuity instead of limited term. So reducing terms to something more than a decade but less than a generation would be the first good step to an improved system.

localroger: "If you can show the receipts where the monkey paid for his plane fare and rented the camera, then I will admit the photo is the monkey's work. Otherwise it's the photographer's."

There must be case law where a thief has claimed copyright of art created with stolen equipment and I'd bet it resides with the thief.

Slap*Happy: "Photography is the process of recording an image, and there are many steps before, during and after pressing the shutter release."

I thought it was clear in the analogue days that for copyright purposes the image was created when the film was exposed to light (IE: Shutter Press). I wonder if any work for hire case exists where a photographer has claimed the photographer owed an image rather than the hirer because the photographer didn't develop the photograph until after the contract ended. Bet the photographer lost.
posted by Mitheral at 8:40 PM on August 7


I thought it was clear in the analogue days that for copyright purposes the image was created when the film was exposed to light

Well the problem is that in these modern days there are many automated ways that the film can be exposed to the light without a human present. Many of those, such as those I linked upstream from the vast Chasing Ice project, result in great masses of photos where nobody pressed the shutter release. As noted by others great masses of nature photos are produced with no human pressing the shutter release. In those cases nobody disputes that the human who placed the camera in the situation owns the copyright.

In this case I think the big problem is a muddled sense of agency. The monkey seems human enough to have "teken its own selfie" but in actual fact a monkey can't take its own photo. A monkey can't do anything with legal consequence because it's an animal. (And no, humans aren't the same as animals under the law.) There is exactly no difference between the macaque pushing the shutter and the butterfly passing a beam to take its picture. Weird arguments about "intent" and "creativity" come from Feist.

And there is a vast problem with the Feist case law because that was written to specifically keep someone from using copyright law to create a stranglehold on a practical tool, a phone book. The language used probably seemed safe at the time but did not anticipate cameras that can actually take decent photos with little human intervention. The act of placing those cameras is of course creative, otherwise Chasing Ice is in the public domain.

And ultimately the macaque "selfie" resulted from a human placing a camera where it might be triggered. The ruling could go either way under current case law but I'd like to think any non-braindead judge would see, as the judge in Feist saw, the need to carve a new niche because just as in that case this time the case law is not about the actual circumstances.
posted by localroger at 9:11 PM on August 7


There must be case law where a thief has claimed copyright of art created with stolen equipment and I'd bet it resides with the thief.

A monkey cannot steal something because it cannot legally possess anything. Something taken by a monkey is not stolen, it is lost. It is never in any legal sense in the "possession" of the monkey because the monkey cannot possess anything. The situation is, at worst for Slater, as if he dropped the camera and the shutter release triggered by accident and it captured a wondrous photo. I do admit that the case would still still be open legally but without the bullshit "agency" of the monkey I think most people would go with the vibe that, having risked his camera by dropping it and all, Slater at least gets the rights to the shot it snapped.
posted by localroger at 9:19 PM on August 7 [2 favorites]


having risked his camera by dropping it and all, Slater at least gets the rights to the shot it snapped

Copyright doesn't have a risk/reward calculation, nor does it operate under a horseshoes-and-hand-grenades model where if a work is created in a way that's ineligible for protection the next-closest artistic person gets the rights to it instead. You either made something or you didn't.
posted by Holy Zarquon's Singing Fish at 8:32 AM on August 8 [2 favorites]




Ars reports :
United States copyright regulators are agreeing with Wikipedia's conclusion that a monkey's selfie cannot be copyrighted by a nature photographer whose camera was swiped by the ape in the jungle. The animal's selfie went viral.
posted by Pogo_Fuzzybutt at 12:54 PM on August 21 [2 favorites]


Set your watches. The stopped clock is right.
posted by ChurchHatesTucker at 2:33 PM on August 21


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