PetaPixel

Wikimedia Stands Up for Monkey Photographer Rights, Refuses to Take Down Monkey Selfie

monkeycopyright

The controversy surrounding the monkey selfies above, which were taken by an endangered crested black macaque using photographer David Slater‘s equipment, is heating up once again as Wikipedia parent Wikimedia refuses to remove the photo from its commons library, claiming that Slater does not own the copyright.

This is a battle that has gone on for some time between Slater/Caters (who licensed the photo for him) and the Internet as a whole. In 2011, we told you about how the blog TechDirt had received a takedown request from Caters, claiming that they were violating Slater’s copyright by using the photo in, ironically enough, an article that questioned Slater’s claim over the photo given the strange circumstances.

But that particular dispute won’t have nearly the impact that this one is having. Wikimedia has several of the selfies up in the Commons, all marked as Public Domain, and Slater seems to be preparing for a legal battle over this.

“If the monkey took it, it owns copyright, not me, that’s their basic argument. What they don’t realise is that it needs a court to decide that,” he told the The Telegraph. “I’ve told them it’s not public domain, they’ve got no right to say that it’s public domain. A monkey pressed the button, but I did all the setting up.”

Screen Shot 2014-08-06 at 10.11.11 AM

Whether or not the letter of the law agrees with Slater’s claim is up for debate, but one thing is certain: he’s missed out on a lot of potential licensing fees thanks in large part to the photo being uploaded to the Commons.

And now he’s looking at spending somewhere in the vicinity of £10,000 (~$16,800 USD) to take the case to court. What would you do if you were in his shoes? Let us know in the comments down below.

(via The Telegraph)


Correction: The original version of this post said that Wikimedia claimed the monkey owned the copyright for this photo. That was incorrect. They simply disagree with Mr. Slater’s claim that HE is the owner. The text has been corrected to reflect this fact.


 
  • Bill Palmer

    There y’go then. Even more reason for this nonsense to be thrown out.

  • http://www.stefannilsson.com/ Stefan Nilsson

    And without the pilot, he wouldn’t be able to fly there. Obviously this has nothing to do with the copyright just like bringing the eq.

  • http://www.ashleystraw.com Ashley Straw

    So who then owns the copyright with a camera trap? If the equipment is triggered by an animal breaking a beam and setting off the camera, then as per Wiki’s argument all those pics are selfies and the copyright belongs to the animal! I think National Geographic might want to fund this blokes legal battle…

  • http://www.evildaystar.ca Eric Lefebvre

    “But if my point of there being a law which states that copyright switches to the photographer who makes available to the public for the first time a work which was not previously available”

    Cool … can you point me to the section of the copyright act (of ANY country) that states this?

    I don’t think so.

    Think about it this way … I shoot a series of photos and accidentally leave the memory card at the rented studio. Based on your interpretation of the law, if the owner of the studio finds my card and publishes the photos he owns the copyright to them? that’s not how these things work.

  • http://www.evildaystar.ca Eric Lefebvre

    You chose the location, you chose the framing, you set it up KNOWING an animal would trip it there.

    Slater was shooting in the forest when a bunch of Monkeys stole his gear and started pressing the buttons.

    “They were quite mischievous, jumping all over my equipment. One hit the button. The sound got his attention and he kept pressing it. At first it scared the rest of them away but they soon came back – it was amazing to watch.”

    Where was the creative process there?

  • lexplex

    What does the law say about things like diamonds? If he found a naturally occurring diamond in the forest and took it home with him, is it his, or does it have no owner because it’s a product of a non-human process? I THINK the law says that the discoverer of an item produced by nature is the legal owner (finders keepers) – so surely he could say he ‘found’ the photo on his equipment, and therefore since there’s no human to dispute legal ownership, then the photo belongs to him?

  • http://www.evildaystar.ca Eric Lefebvre

    By the same argument the photographer wasn’t willfully composing the scene either. His gear has stolen by a bunch on monkeys who started running around with it and pressing random buttons.

    They were quite mischievous, jumping all over my equipment. One hit the button. The sound got his attention and he kept pressing it. At first it scared the rest of them away but they soon came back – it was amazing to watch.

  • David Vaughn

    Um, they basically explained that the photo has no copyright because it was taken by a non-human, not because it wasn’t taken by Slater specifically.

    If it was just about Slater not owning the copyright, then that implies that someone else does own the copyright. Because it’s less about him not owning the copyright, and more about the primates lack of copyright due to legalities, then it can be assumed that their giving ownership of the photo to the primate even though, legally the primate does not own the photo’s copyright.

    Idk how better to explain it than that convoluted explanation.

    They’re trying to play on a copyright loophole that nobody ever thought existed.

  • Chang

    Right, except the timer actually tripped the shutter creating the image. I’m attempting to follow this absurd logic to its end.

  • Jake Bertz

    It’s not public domain, because the monkey owns the copyright.

  • Jake Bertz

    Your dog would own the copyright, but you own the dog.

  • Keith D

    I don’t think Wikimedia means the monkey owns the copyright (I might be wrong), but that Slater does not, simply because he didn’t set up, or even take the shot. I agree it should be in public domain. It may have been his equipment, but he didn’t take the shot.

  • http://www.ashleystraw.com Ashley Straw

    I’d swap ‘knowing’ for ‘hoping’, but I’d say, in the case of camera traps that that’s the photographers work and any resulting shots are the photographers property.

    However in the context of Wiki’s argument, they are saying that ownership of copyright goes with whoever or whatever triggered the shutter, which would therefore equally apply to camera traps.

    I don’t agree with their stance, i think these monkey pictures are a wonderful fluke of circumstances and it’s not Wikis call to arbitrarily decide on an issue of ownership.

  • http://www.evildaystar.ca Eric Lefebvre

    You are confusing copyright and property ownership.

  • Andrew St Clair

    But since the photographer didn’t snatch the camera away from the monkeys the minute they started touching it, he therefore set up a situation for photographs to be created.

  • http://yasirsaeedphotography.com Yasir Saeed

    I stand corrected. :) Let the monkey sue for infringement then :D

  • David Vaughn

    Except that the primate does not otherwise have the cognition to go out and take a photo. If the photographer hadn’t spent the time, money, and purposeful creative energy going to where the monkey was, then the photos would not exist.

    Whereas a human makes the conscious choice to create, a monkey does not, therefore, in my opinion, the photographer is directly responsible for the taking of this photo.

  • Felipe_Paredes

    first, sorry for my english… in continental law, your cat and your dog, are “objects”, “things”, “cosa” (spanish), Res (latin), “objeto semoviente” animated things, so, in the eyes of law, not a “subjects” of law. Your cat in this case is not diferent than a remote control.

  • http://www.evildaystar.ca Eric Lefebvre

    But you aren’t following it to it’s end. You are skipping straight to the end while ignoring everything else in between.

    Let’s say I’m a studio product photographer and I’ve had an accident and both my arms are in a cast and you are my assistant.

    I then tell you what base to use for the product, what colored gel to put on the back light, where to position all the lights, what settings to use on the light, exactly how to frame the camera. what settings to use on the camera … you have ZERO artistic input in the image we are about to take, you just move stuff where I tell you and set the settings exactly as I say … but I have you press the shutter at the end. I own the rights to that image.

    That’s how the law works in 99% of the world.

    ps.: Not a lawyer.

  • Felipe_Paredes

    Take your stinking paws off the camera, you damned dirty ape!

  • David Addams

    No way to sell them after Wikimedia posted them as public domain images. Anybody that wants to use them now can just download them from that site without paying any money to the photographer.

  • David Addams

    Do you work for Wikimedia?

  • http://randomphotosfromengland.wordpress.com/ nemethv

    Keep in mind that the monkey is not an adult of sound mind in legal terms, at least not in the UK, so the monkey is not entitled to own a copyright as such. Perhaps the legal guardian or custodian (the zoo maybe if it’s applicable here, I haven’t read the whole thing).

  • Chang

    Dude, I think we’re on the same side here.The photographer made the image, despite the monkey tripping the shutter. He owns the rights.

  • http://www.evildaystar.ca Eric Lefebvre

    Nope.

  • http://www.evildaystar.ca Eric Lefebvre

    Actually, I think they are basing their decision on this.

    Section 503.03 of Compendium II of Copyright Office Practices

    503.03 Works not capable of supporting a copyright claim.

    Claims to copyright in the following works cannot be registered in the Copyright Office:

    503.03(a) Works-not originated by a human author.

    In order to be entitled to copyright registration, a work must be the product of human authorship. Works produced by mechanical processes or random selection without any contribution by a human author are not registrable. Thus, a linoleum floor covering featuring a multicolored pebble design which was produced by a mechanical process in unrepeatable, random patterns, is not registrable. Similarly, a work owing its form to the forces of nature and lacking human authorship is not registrable; thus, for example, a piece of driftwood even if polished and mounted is not registrable.

  • lexplex

    So does an oyster own the copyright on a pearl it produced, then?

  • ShaoLynx

    He enabled the entire thing: he came up with the idea, he created the opportunity, he took the deliberate initiative. The rest was anthropology. The pilot did not share in this initiative – and he was paid for his services.

  • http://www.evildaystar.ca Eric Lefebvre

    I don’t think we are.

    No one owns the picture. The photographer didn’t do ANYTHING other than get his gear hijacked by a bunch of monkeys.

    He didn’t plan on having this happening. A couple of monkeys got curious and started messing with his gear.

    They were quite mischievous, jumping all over my equipment. One hit the button. The sound got his attention and he kept pressing it. At first it scared the rest of them away but they soon came back – it was amazing to watch

    Might as well have been accidental radio interference causing the shutter release to suddenly start firing while the camera was just sitting on a log waiting to be put away.

  • Patrick Lyons

    I made a reply but seems because I included a link to the document it didn’t get approved. Here we go again without the link, you should be able to find the link to the act on-line.
    Copyright and Related Rights act 2000, Chapter 3, 34.

    34.—Any person who, after the expiration of the copyright in a work, lawfully makes available to the public for the first time a work which was not previously so made available, shall benefit from rights equivalent to the rights of an author, other than the moral rights, for 25 years from the date on which the work is first lawfully made available to the public.

    That is from Irish law, where I reside, and has much in common with British and European law and others. It could be argued that expiration of copyright and no copyright ever existing would have the same effect after the work is made available to the public.

  • David Vaughn

    Thank you for putting his pompousness to rest.

  • IcoHolic

    Ok.. fair enough. Doesn’t matter how you explain it… Wiki is most likely right. :)

  • http://www.evildaystar.ca Eric Lefebvre

    They were quite mischievous, jumping all over my equipment. One hit the button. The sound got his attention and he kept pressing it. At first it scared the rest of them away but they soon came back – it was amazing to watch

    Pure happenstance … no initiative there. So if you go to a zoo and accidentally drop your camera in the monkey cage and they grab it and start shooting pictures then you own the images because you purposefully went to the zoo?

  • Patrick Lyons

    Also worth pointing out is point about the memory card is not thought out, just because someone first makes your photos on the card available to the public does not mean they own them as his copyright has not expired, they would have to wait until you die and then another 70 years lol.

  • Thomas Kryton

    There’s also the case of elephants that have been taught to “paint.” The few sites I’ve checked all state that the images that have been painted by the elephants have copyrights attributed to the zoo or such and not the elephants. Now, there is certainly more effort put into a painting by an elephant than a monkey pushing a shutter release. If anyone should push to have their copyrights protected it should be the elephants. Now, if the monkeys perhaps had lit the scene, done the white balancing and post work then I’d say sure, give them the copyright.

  • Kane Cunico

    Well, as the saying goes, “If you pay in peanuts…”

  • http://www.evildaystar.ca Eric Lefebvre

    Yeah, I hate how they moderate comments with links in them here. :(

    “Any person who, after the expiration of the copyright in a work”

    I’m not a lawyer (and not form Ireland even if my father in law is) but after “expiration of the copyright”.

    There never was copyright anyways but perhaps you are correct under Irish copyright.

  • http://www.evildaystar.ca Eric Lefebvre

    That is quite the stretch there but who knows … that arguments might actually work.

  • David Vaughn

    I just have to wonder what would be the reaction if he won for those photographers who side with Wiki.

    “This is an outrage to non-humans and natural anomalies everywhere! We must take to Tumblr to express our outrage at this injustice!”

  • David Vaughn

    Meh, I disagree that, because under the law, an image does not have a copyright, that it should be put into the public domain, because the public domain is made up of things that had copyrights that are now expired.

    If anything, I think this should push legislation regarding the rare occurrences such as this one.

  • http://www.evildaystar.ca Eric Lefebvre

    But having monkeys play with his cameras wasn’t the purpose or plan or even a remotely expected outcome.

    “They were quite mischievous, jumping all over my equipment. One hit the button. The sound got his attention and he kept pressing it. At first it scared the rest of them away but they soon came back – it was amazing to watch.

    By your own admission he couldn’t have expected the monkeys to know how to use the cameras so this was a pure accident.

    “Whereas a human makes the conscious choice to create, a monkey does not, …”

    Since the odds of being able to reproduce this are next to none …

    Compendium II of Copyright Office Practices published by the US Copyright Office reads:

    503.03 Works not capable of supporting a copyright claim.

    Claims to copyright in the following works cannot be registered in the Copyright Office:

    503.03(a) Works-not originated by a human author.

    In order to be entitled to copyright registration, a work must be the product of human authorship. Works produced by mechanical processes or random selection without any contribution by a human author are not registrable …

  • http://www.evildaystar.ca Eric Lefebvre

    Compendium II of Copyright Office Practices published by the US Copyright Office reads:

    503.03 Works not capable of supporting a copyright claim.

    Claims to copyright in the following works cannot be registered in the Copyright Office:

    503.03(a) Works-not originated by a human author.

    In order to be entitled to copyright registration, a work must be the product of human authorship. Works produced by mechanical processes or random selection without any contribution by a human author are not registrable. …

  • Burnin Biomass

    Looking at it another way (since i dont think a monkey can hold a copyright), I would consider this falling under the rules of “Found Art”. And in that I believe its whoever finds it first and decides its art (assuming someone cant hold a claim to copyright before them, but like I said, i dont think a monkey can”).

    Otherwise, if the court deems to give the monkey rights, perhaps you can say that the image is transformative, since it is being used in a new way and intent from the original artists intent (the monkeys had no intent in the making of the image past “look at this shiny thing”).

  • http://www.ashleystraw.com Ashley Straw

    I wonder where a camera trap fit into that, as it’s set up by a human, yet triggered by a mechanical processes that requires the animals involvement (all be it unknowingly). But that aside it looks like even if they argue the toss as to whether Mr Slater is the copyright owner, it can’t be the monkey.

  • http://www.evildaystar.ca Eric Lefebvre

    and honestly, if I was to try an experiment like that, I’d be handing out cheap Canon Rebels with a kit lens (or 50mm f1.8) geared up with knock off EYE-FI cards and not high end Nikon D4’s (or whetever he was shooting with) in case they ran off with the gear. :)

  • Chang

    Well, I guess at the very least we’ll get to see who hires the better lawyer: the monkey or the photographer.

  • http://yasirsaeedphotography.com Yasir Saeed

    Absolutely. And my takeaway from this is that the next time I let a monkey take a photo of himself, I’m telling everyone I took it. :D

  • Mark Myerson

    Yes, I agree they would have no monetary value — i just meant that he (or anyone else) has the right to sell them.

  • http://www.evildaystar.ca Eric Lefebvre

    LOL. It’s more of a question of Wikimedia vs Photographer since the Photographer is suing for copyright infringement while Wikimedia claims the image is public domain but yeah … who knows how this will come out. :)

  • drivingmenuts

    I’m pretty sure that the monkey cannot hold copyright, unless copyright has been assigned to it, which the photographer did not do.