Huh. I get that the monkey doesn't own the copyright, US law seems pretty straightforward there. But I don't see how that means that the photographer does own it, since neither is he the creator of the photo; yet the article talks about him benefiting from the funds when it's sold.
Secondly, AFAIK, the case never ruled on whether Slater held the copyright to the photo, just whether the monkey could. The lower court said animals can't hold copyright, PETA appealed, then later decided to settle. When the US Copyright Office weighed in on the subject a few years ago they declared that the photo was not eligible for copyright:
Imagine a wildlife photographer trying to get a picture of a bear at night. Maybe she would set up something to attract the bear, then use a motion sensor to trigger the camera. Clearly she is the author of the photo, even though the bear actually triggered its taking.
I feel a similar argument could be made for the monkey selfie: the photographer didn't push the button, but he created the circumstances.
The difference is in composing the photo and choosing the triggering of the shot.
In the motion sensor scenario, the photographer frames the shot and defines the conditions under which a photograph will be taken.
In the monkey selfie, the photographer did not frame the shot, did not direct the camera, did not control conditions under which the photo would be taken (beyond the manufacturer's button). This there was not creative input by the photographer in the actual image captured.
I'm not so sure about that. Slater spent a couple of weeks with the monkeys to get this photo shot. I would suspect that he also then put the camera into a video recording mode or continuous burst plus time reviewing for a workable frame and then likely some Photoshopping.
Imagine an AI that generates songs. Imagine it generates millions of songs.
What are the odds some of those songs will accidentally and independently "copy" features deemed distinctive and commercially valuable in existing songs under copyright?
Is this deliberate creative copyright infringement surrounded by noise, or is it the result of an aggressively fast random search of a limited symbol space - and what is the difference?
Copyright law is going to have to change. It's either going to have to become irrelevant, or it's going to have to support hybrid not-quite-patent not-quite-copyright IP protection of generative/creative processes/personas, either manual or automated.
> Imagine an AI that generates songs. Imagine it generates millions of songs. What are the odds some of those songs will accidentally and independently "copy" features deemed distinctive and commercially valuable in existing songs under copyright?
Another question is: what are the odds that a future song will inadvertantly copy one of the computer-generated songs?
Given that there are only a finite number of notes and chords, that some note-sequences are more "musical" than others, and the computer can easily generate billions of songs, one can imagine a musical copyright troll (like a patent troll, but with copyrights):
1. creating a large number of songs on a computer
2. writing software to detect similarities between new songs and the computer song collection
3. shaking down songwriters/artists for profit
> Copyright law is going to have to change.
People have been saying that for some time. My own take is that it will change when it no longer suits the rich and powerful.
Copyright does not work that way. Copyright awards protections to a creative act.
If you use a computer to generate songs, there is no creative act, and no copyright.
If you copy a song someone else generated with a computer, there is no creative act, and no copyright.
If you independently write a song, and a computer independently creates an identical song, there is a creative act, and you own the copyright to the song you created (but the song the computer created is in the public domain).
If two people independently write the same song, then they both own the copyrights to their respective songs.
If there is not substantial creative expression by the user in the final output, then the output is in the public domain. And independent creation is a defense against copyright infringement claims.
"...authorship rights should go to the user when the user makes a very substantial contribution to the output. But when the user does very little and most of the output is left up to the AI machine, then it is less likely that the user may own the copyright in the output. " [CONTU 1974 - yes, 1974]
> What are the odds some of those songs will accidentally and independently "copy" features deemed distinctive and commercially valuable in existing songs under copyright?
This isn't a conflict under US copyright law - independent creation is a defense against copyright infringement under US copyright law. In contrast, patents apply even with independent creation.
If the camera was in a continuous shooting mode, I take it you're suggesting that the initial frames were authored by the photographer, and at some point the authorship changed after the monkeys had moved the camera enough? And the final frames in the sequence again became authored by the photographer when he grabbed the camera back?
What if it had been wind moving the camera, rather than monkeys? Do you feel his authorship would have been equally lost in the middle of that sequence of frames?
"""
They were quite mischievous jumping all over my equipment, and it looked like they were already posing for the camera when one hit the button,” he told The Telegraph in 2011. “The sound got his attention and he kept pressing it. He must have taken hundreds of pictures by the time I got my camera back, but not very many were in focus. He obviously hadn’t worked that out yet."
"""
There is some doubt whether Slater actually used a remote trigger, but that wouldn't have been as good a story as the "monkey selfie", so the image may not have gone viral, though he'd have a better case to own the copyright.
This is a can of worms. What if the equipment malfunctions? What if you misconfigured it? What if something else triggered it? What if you take the shot yourself, but squeezed too early because someone shot a rifle?
A malfunctioning equipment don't change the fact if a artist has made some creative input. So long the creative aspect is still visible (ie, the image is not all a single color), there is a argument to get copyright for the combined result. What the creator do not get is exclusive right to any work that has similar malfunctioning but with different creative input, so a interesting looking artifact from malfunctions should not be copyrightable.
A misconfiguration could be argued to be a form of creative input. Debatable. A write should still be entitled to copyright, even if their books has odd words from when auto-correcting software misbehave.
Who trigged the image is not very important so long the creative input exist. Arguable you could claim that a director has more claim to copyright that the person behind the device, but this is the place which practicality comes into place where society prefer to have a single author over many. From a philosophical perspective I would say that every person involved in creating a artistic work should get copyright ownership, similar to how every developer of the linux kernel has copyright ownership for each part they made.
While not a traditional composition he did choose one specific one out of the millions of monkeys on the planet and in that specific location. And it is a compositional strategy that has perhaps never been tried before.
If you put a camera on the table in front of me, I pick it up, point it at my face, and press the button - I think it'd be fair to claim the copyright there belongs to me, not the person who put the camera on the table.
If you replace me with a monkey, you have the original claim in a nutshell.
I think the actual problem here is the strange assumption that copyright naturally exists, and must be assigned somewhere. And that if it can't be assigned because the obvious recipient isn't a legally defined 'person', it strikes out like a lost child looking for someone else to cling to.
What specificity is missing? I think it’s fairly simple.
Firstly, I think we can completely ignore "misdeeds". Nothing in the creation of this photograph occurred contrary to anyone else's wishes.
In a nutshell, there was two slightly different versions of events here, which lead to opposing conclusions.
The first version was the tagline the photo was originally published under. A "monkey's selfie".
Now, if I say "pass me my phone", or "may I borrow your phone", and then take a 'selfie' with it; I think it's pretty clear that the "creative input" was mine, not yours. So the question becomes "if I, a monkey, am not legally recognised as a person capable of copyright - does it fall to you, or does it simply fail to be copyrighted".
So that's the example I was trying to frame. That if that monkey was me, the copyright claim wouldn't even be a question (nor would anyone be looking at the photo). But ironically, the description that created the commercial demand of the photograph, also destroyed the photographer's ability to commercially exploit it.
Then we got the later, long-form version of events. That the camera was intentionally staged for this, a wide-angle intentionally selected for this, the remote intentionally positioned for this, etc. "how the sausage is made", but basically the photographer reasserting that the "creative input" was his.
The whole thing then got lost in a limbo; a court in the US, and the ICO in the UK, have both said animals cannot own copyright. Neither has opined on whether an animal is capable of "creative input". If they are, the monkey was likely the primary source of creative input, not the photographer (in which case there simply is no copyright). If they're not, then he'd be the sole creative input, and the copyright is his.
Ultimately I think the photographer shot himself in the foot.
(I do have other questions though. If a US court has said a monkey cannot own copyright, how was this PETA case even a thing? How are PETA able to assert themselves as the IP agent for an Indonesian monkey? And why are the actions of a British photographer, acting in Indonesia, being opined in a US court?)
tl;dr, but in essence we cannot completely ignore "misdeeds", because the circumstances are essential in your example, the case not withstanding. That the same circumstances wouldn't be comparable to the monkey's action in the case is either a baseless assumption or showing the hole in your analogy. That is, unless you alleged you were a monkey :P
I mean, you weren't specific so I may assume you stole the camera. And I'm sure monkeys have a concept of stealth, too.
I agree. Replacing "camera" with "gun" clarifies who the "photographer" is. I.e. if someone set up a trip wire to a gun (booby trap), would the person who tripped the booby trap be a suicide victim or would the person who set up the booby trap be a murderer?
If you give a gun to a being of minor intelligence who then shoots itself, that won't be unadultered suicide, that will be negligent homicide at least.
If you start shooting a video on a phone, and hand it around from person to person, does whoever was holding the camera own the copyright on all of the frames shot while they were holding it?
It's contextual. If a person developed a situation in which a creative work was produced, i.e. the direction was instrumental in the resulting work, then possibly yes. Think of reality TV. Unscripted, but produced, and absolutely copyrightable.
I'm sure all the parties involved in a reality show are contracted in some way (camera operators) or, more or less, subjects of a documentary or piece of journalism.
> Wait, but then if I hand my camera to someone and ask him to take my picture, I don't own the copyright of my own picture!
Yes, that is correct. Copyright resides with the person who provides the creative expression in taking the photograph, not in the subject or person who provides the equipment.
This most often comes up in the context of portrait photography/family photos. People expect that they can automatically make copies of the pictures of themselves that they paid someone else to take, but unless the contract is specifically written and signed by the photographer that the work is a "work for hire" and specifies that the copyright is owned by some other person, the copyright remains with the photographer.
In a theoretical sense, probably not. It's not a work for hire. You probably gave at most vague directions about how to compose the photo. The fact that it's your camera is irrelevant.
Meanwhile in the real world I somehow doubt that this has ever come up as a legal issue.
Maybe this is why selfies have become so popular... One could imagine a scenario where copyright trolls would hang around in popular tourist destinations kindly helping people take photos then sue them once the images end up getting posted on social media...
For instance, no reasonable person would argue that the photographer's father deserves the IP rights because he helped create a necessary factor in the circumstances by which the photo got taken (the existence of the son). However, if the father didn't exist then clearly the photo would never have been taken.
So the manufacturer is involved, but very indirectly. The manufacturer definitely isn't the author.
I strongly disagree, it's like someone picking up a rock and then owning the copyright on it's shape. Copywrite implies creative control and unlike a motion sensor camera the 'artist' did not define anything about the picture.
The artist in this case hiked into a south-east asian jungle for the purpose of taking wildlife pictures, and spent days gaining the monkeys' trust in order to get close to them. Sounds more like the photographer defined a hell of a lot about the picture.
I think you might be right from a technical, mechanical sense, but I think most of the objections from posters here are because of an impedance mismatch between the word of copyright law and the spirit of what it's intended to achieve.
The macaques were simply fooling around with a plaything and had no comprehension of what a selfie is; there is no artistic intent on their part. On the other hand, the photographer by his account appeared to go into this project with the specific intent of obtaining a monkey selfie. The concept, the subjects and their moods, lighting, shot settings, etc. were all his doing, and by any reasonable yardstick his work should be recognized as a form of artistry, just as how it is not exclusively the cinematographer, but the Director as well who is entitled to copyright on a film.
And yet we have people arguing in court that by the legal specifics of who owns copyright on photographs, this is purely the monkey's "work" (and winning).
You're presupposing two positions, while in practice there's three: there are plenty of people (indeed, including some judges who have previously ruled on this) that believe that the monkey is, of course, not entitled to copyright, but neither is the photographer, because of how stretched the notion of "the concept" etc is here, and how indirect the chain of causality is.
A monkey didn't sneak into his hotel room and take a happy snap. He sought them out and spent days with them, and handed his equipment to them. That's not 'indirect causality'.
By your reasoning, if I was to put a camera in a tumble-dryer and let it snap photos while spinning, those photos would not be mine because whilst I set up the circumstances, the actual photos were not specifically composed by me.
Far too much emphasis is placed here on who pressed the physical button, and not who brought everything together.
> By your reasoning, if I was to put a camera in a tumble-dryer and let it snap photos while spinning, those photos would not be mine because whilst I set up the circumstances, the actual photos were not specifically composed by me.
I don't have a problem with that consequence. Copyright is supposed to reward creativity. I don't consider "photo made by putting camera into a tumble dryer" creative in any meaningful sense. I understand that a lot of modern performance art would probably be excluded with this approach - but I don't see it as a problem, either.
>The picture did not capture creative expression of the photographer.
That's extremely provincial and 19th century view of the matter.
In modern art all kinds of artists including photographers give creative control to random elements and processes.
It's the setup they built and the creative concept behind it that defines their artwork, not the details like "composition/timing" which they can leave to chance, others, etc. (Yes, in some works even "composition" and "subject matter captured" can be detail left to chance -- this is often the case in e.g. generational music and painting, where the artist just sets up the general framework).
Well, copyright is a 17th century legal concept, so I don't see why "extremely provincial and 19th century view" is necessarily wrong?
Artists are welcome to do all kinds of things, such as "given creative control to random elements and processes". But they shouldn't be surprised if copyright law doesn't fully apply to the result.
The principles and rationale underlying copyright were not superseded. The only things that changed are various technical details, like copyright terms, and applicability across borders.
So? Isn't the point of copyright to compensate artists for their work? I.e. It's to encourage artists to produce art. Ostensibly, we would like pictures of wildlife. If the artist went through all that trouble to take pictures of monkeys, and we don't give him rights for that, we'll just end up with fewer pictures of monkeys.
The purpose is "to promote the progress of science and the useful arts", the method is "by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries".
In this case, the Work was created by the monkey. Yes, the camera owner helped, but he doesn't meet the established criteria of the Author in existing copyright law. Nor does the monkey (works of nature are not copyrightable).
You can disagree with the law as it exists (I think terms should be drastically shorter, and in no case should copyright be extended retroactively), but it takes an act of Congress or the courts to change it.
I still don't see how securing the rights of works for animals helps promote the creation of those works, when they have no concept of intellectual property rights.
What about an artificial intelligence that creates music? Who owns the copyright then, the programmer or the AI?
I think this issue is actually secondary to the issue that somehow PETA was able to insert itself as having standing for representing this particular animal and not just the rights of animals in general - IIRC they claimed they had gone out and found the exact monkey (and done what, sought its opinion on the matter? Provided legal advice?).
If the photographer had set the camera to be operated by a remote control, and clicked the switch, or set up a shot with a lightning sensor, or dropped the camera and it landed on a pebble which triggered the shutter release, few would argue that the photographer wouldn't own the copyright. The monkey might be analogous in the situation.
Ultimately it's just a place where the judge has to have an opinion because the law doesn't really have a plan for such an improbable situation.
To get the picture he had to buy the camera, configure it's settings, select a lens, build trust with the monkeys, create an environment in which the picture could happen, examine all the pictures in the camera, curate those pictures and select ones worth publishing, apply filters, sharpening, etc to the image and then publish it.
Basically, there are very good reasons involving a lot of skill and hard work as to why he had that image in his possession and you didn't, and he deserves compensation for those reasons.
Well, the monkey seems to have borrowed the equipment and outsourced technical parts of the process to a specialist and focused on the creative part. Pity the camera owner did not sight a contract, he could have charge a fee for assistance or even negotiate some royalties.
I don't like that argument. In Feist, the Supreme Court said that creativity is what matters, not how much work was involved. And it doesn't have to be much creativity at that.
The article says "Mr Slater, of Chepstow, said he put in a lot of effort which was more than enough for him to claim copyright." "A lot of effort" sounds like "sweat of the brow copyright" to me, which was explicitly rejected by the Supreme Court in the US.
You dont need to own a copyright to profit from it. Those who paid to use this photo lacked the guts to just use this not-copyrighted image. So he made a few bucks from lazy cowards. Id bet good money he sold them a contract, him agreeing to never go after them, rather than actual copyrights since there are no copyrights to be sold.
Certainly some of PETA's donors are thrilled. This was PETA testing the legal waters for the acceptance of broader animal rights and how far that extends at this point in time culturally (laws eventually tend to shift with cultural changes). They will continue to do this sort of thing perpetually for that reason. Given the radical, extremely broad cultural change in just the last ~20-30 years toward animal welfare, it's almost guaranteed PETA will land a victory in a case like this in just another few decades.
Here is PETAs numbers compared to one of the local shelters:
> the Lynchburg Humane Society, also in Virginia, took in about the same number of animals as PETA but saved 94% and without PETA’s millions. Seagoville Animal Services in Texas took in 1/3 of the numbers (about 700 animals) but only 1/20th of 1% of the amount of money that PETA did, saving 99% of them on a paltry $29,700 budget. In fact, hundreds of cities and towns across America are saving over 90% of the animals and doing so on a fraction of PETA’s wealth.
This PETA quote offers some explanation:
> It’s easy to point the finger at those who are forced to do the “dirty work” caused by a throwaway society’s casual acquisition and breeding of dogs and cats who end up homeless and unwanted, but at PETA, we will never turn our backs on neglected, unloved, and homeless animals — even if the best we can offer them is a painless release from a world that doesn’t have enough heart or homes with room for them.
And:
> the vast majority of which were “owner surrenders,” meaning that they’d been relinquished to PETA voluntarily.
If PETA gets all of the re-homable pets that all of the no-kill shelters denies, then I understand why their numbers are so bad, I wonder how it compares to the public run shelters.
The no-kill shelters also needs to answer for what to do with all of the dogs that can't find a home due to illness, behavioural problems or aggression, is a life in kennels the best we can offer them? And what about the space that a non-re-homeable pet takes from a re-homeable pet?
There have been stories of no-kill shelters that would "donate" their pets they can't re-home to another entity, that will then do the killing.
But in the end, and I think this needs to be addressed, all of the shelters are trying to solve a problem that is created by irresponsible breeders and owners.
The situation in the US is insane at the moment, and there simply isn't kennel space or homes for all of the pets that needs it.
Sorry for the long message, but this issue isn't as black and white, and I have done a lot of thinking on the subject, but I haven't seen a solution that I prefer.
They should be: settlement or no, I think this case is a win for PETA.
I don't believe PETA ever went into this expecting to actually win copyright privileges for animals. I think they intended to create a 'chilling effect' around animal photography and any kinds of entertainment they see as 'exploiting' nonhuman species. The further the case goes, the more risky that will look as a commercial endeavour.
The case also raises the profile of the organization. This is not just for vanity: it's how pressure groups try and take hold of the agenda and gain a platform for their views.
The interesting part with all this is that Peta’s argument actually won: The photographer has no rights to the photo, and can not collect any royalties.
Because you don’t have any copyright to photos made with your camera, but only to photos made by you.
PETA argued that the monkey should have copyright in the photo. That argument was rejected by the district court, and didn't look super promising in the appeals court oral argument.
There was a separate discussion about whether the photographer could have copyright in the photo, in particular the Wikimedia Foundation claimed he should not. That discussion has not been tried in court at all, and it seems far from certain (lots of legal commenters disagreed).
He could've deleted the photo. Instead he had the right to copy the photo and as exclusive owner that was his exclusive copyright. At which point would that have been lost?
Copyright protection only applies if you, personally, had a major share in creating something.
A good example are music remixes, you need to actually contribute a lot yourself to have copyright.
If your camera gets stolen by someone, and they take a picture, without you having any influence in that, you do not own the picture. You can not force people who want to use it to pay.
A camera thieve shouldn't profit from a misdeed, and the picture shouldn't be in the public domain by default. So, the photo has to be deleted because noone can claim copyright?
No, he actually won at first, but the US agencies responsible for it agreed that PETAs arguments were true.
You can not own copyright of something you didn't created, when someone — be it a toddler or an animal — steals your camera and takes a photo, you do not own it.
Now the real question is if the animal owns the photo, or if no one does.
But US law allows unintuitively that animals can own things, and manage them. As lots of rich people had the idea to set a pet as their heir in their will, precedent was made for that.
So the only question is if the court would follow the precedent, or follow the agencies' opinion that the image is public domain.
Which led to the settlement, which argues that 25% of the image belongs to the management of the habitat where the ape lives, and the rest to the photographer.
As a matter of fact, the fact we consider babies human is a progressive evolution in human history. In ancient Greece for example, children were considered property of their father till the age of puberty, who could dispose of them (including of their life) the way he wishes. A father could kill his son without consequences
If I put a camera inside a tumble dryer and the motion causes the camera to trigger and capture a photo, I think I should still own the rights to the image.
The monkey isn't acting with any real understanding of the creative situation so is just an agent of randomness, like the tumble dryer.
Even if the monkey did it consciously, it did it with stolen equipment, on a mission somebody paid good money to go and setup. And of course the photographer set the camera's settings too -- pressing the button is the easiest part.
In fact, lots of nature photographers use "camera traps" with automatic trigger sensor when an animal walks nearby -- which is the same as the "animal pushing the trigger" and nobody seriously suggests those are photos the animals took.
> The monkey isn't acting with any real understanding of the creative situation so is just an agent of randomness, like the tumble dryer.
One of the pictures shows the monkey perfectly centered with a friendly smile on his lips. In my opinion a clear indication that he did have an understanding of the creative situation, that he did not just randomly click the button.
Link to the appeal's court ruling? San Francisco court I assume will have it up very quickly, but I'm not sure where to look. Usually people have legal documents posted on Scribd very quickly, but my compulsory search found nothing under "naruto v slater" today
Those links are to the complaint and the district court's order dismissing the case.
Edit: See above for link to LA Times article reporting that a settlement was reached between PETA and Slater, not that the Ninth Circuit issued an opinion.
I think its strange that there isn't more discussion about the impact on the photographer and the consequences this lawsuit has had on his life, he is pretty much broke and it seems to have destroyed his career not to mention put him and his family through what I would imagine to be pretty harsh emotional distress over the last couple of years.
This article: https://www.theguardian.com/environment/2017/jul/12/monkey-s... basically says a couple of months ago he was broke, couldn't afford to replace his equipment or pay his attorney. I hope this result will change his situation but even so this is a huge impact on someone over an issue that realistically is fairly niche.
Questions like this are important to be answered, but surely there should also be discussion about was there a better way to do this than ruining someones life over a picture that could never have existed without his direct intervention and creation of the circumstances needed for the monkey to come into contact with the camera.
This has been an absolutely horrendous case that has put the photographer through hell.
I have total and complete sympathy with him and support him absolutely. Twunts trying to deny him copyright on the photo (often based on ficticious versions of how the photo was taken) are screaming arses.
I think PETA see outrageous behaviour as a good way to raise their profile. Whether that actually helps them achieve their goals, though, I'm not that certain.
Peta were surely way off. But photographer himself also incorrectly claimed copyright on the photo, which is wrong, since he didn't take it. In short, the photo is in public domain.
As a result of this decision most tech employers can rest easier, secure in the knowledge that they also own the copyrights on code written by monkeys.
Anyone know what's up with that?