PetaPixel

Photographer David Slater Explains Why He’s Going After Wikimedia Over Monkey Selfie

David Slater, the photographer who is currently embroiled in an argument (and quite possibly, soon to be embroiled in a lawsuit) with Wikimedia over the famous ‘monkey selfie’ images, recently spoke to ITN to clarify his position on the whole ‘who owns the copyright’ argument.

After receiving “a lot of free advice,” it looks like he’s leaning more and more towards taking Wikimedia to court over the controversy.

The original monkey selfies captured by... the monkey?

The original monkey selfies captured by… the monkey?

The argument is that the idea that the monkey pressed the shutter, so Slater — who claims in the video that he set up the camera and remote shutter release with this exact outcome in mind — doesn’t own the copyright hasn’t been tested in court, and it’s not Wikimedia’s place to decide what is and is not legal in this particular instance.

Screen Shot 2014-08-06 at 10.11.11 AM

“They’re guessing, and they are ruining my income stream,” he says in the video. “They are acting as judge and jury in a law case and they are gonna be in big trouble if a judge eventually rules in my favor.”

His hope, he explains, is that this case will help photographers who are having a harder and harder time making a living. The goal is to change copyright law forever because, as he puts it, the profession of wildlife photographer is becoming “almost unsustainable”… and that’s a reality he would rather avoid.

(via ISO 1200)


 
  • http://twitter.com/kenny Kenneth Younger III

    All copyright is stealing from the public domain. And I intend “steal” in the actual sense, not the typical misuse by copyright maximalists.

    I think our court system will probably rule against Wikimedia, though.

  • Pete

    EXACTLY! If anyone who “contributed” to the image was expanded past the creative contribution, then who else would own the copyright; the camera maker? the factory worker who made the camera? the memory card maker? the mine who mined the ore? etc, etc etc?

  • kassim

    How about, he went to Indonesia because a friend suggested him to do so? Does his friend(the one who gave him idea) hold copyright as well? I don’t think so.

  • kassim

    Only this primate’s works are eligible for copyright.

  • kassim

    for a what?

  • dimitrisservis

    FYI

    As of today and for the whole eternity I deliberately want all photographers of the world, those living and those who will be born, to take pictures. My idea is that either at home or abroad you will carry your cameras and take pictures. Of course I will own all copyright.

  • dimitrisservis

    Doesn’t this mean that all pictures actually belong to the film and silicon makers?

  • Nate

    If I was to set up my camera ready to use with just on click and allow my friend to use it, would he own the images he takes or would I?

    I would say my friend would own them even if he is a bit of an animal…………………

  • Christian Büte

    Actually, the monkeys should have a lawyer too, because he did not ask their permission for the photos. Sure, animals do not have right…then why did he go there to take those photos?

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

    You can’t copyright a concept or idea.

    How do I protect my idea?
    Copyright does not protect ideas, concepts, systems, or methods of doing something. You may express your ideas in writing or drawings and claim copyright in your description, but be aware that copyright will not protect the idea itself as revealed in your written or artistic work.

    Source: US Government Copyright Office Website | FAQ
    (not linking to it so we don;t have to wait for moderation)

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

    Under the law companies are what is known as “Legal Persons” or more specifically “Judicial Persons”.

    Legal persons (lat. persona iuris) are of two kinds: natural persons – people – and juridical persons (also called juristic or artificial or fictitious persons, lat. persona ficta) – groups of people, such as corporations, which are treated by law as if they were persons.[1][4][5] While people acquire legal personhood when they are born, judicial persons do so when they are incorporated in accordance with law.

    source: Wikipedia

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

    I agree that he MIGHT own the rights to the edited photos as Derivative Works.

    In copyright law, a derivative work is an expressive creation that includes major, copyright-protected elements of an original, previously created first work (the underlying work). The derivative work becomes a second, separate work independent in form from the first. The transformation, modification or adaptation of the work must be substantial and bear its author’s personality to be original and thus protected by copyright. Translations, cinematic adaptations and musical arrangements are common types of derivative works.

    source: Wikipedia

    The question then isn’t “does he own the rights to the images the ape took” but becomes “Are the edits that Slater made to the original Ape created images enough to warrant protection as a derivative work?”?

    since the image Wikimedia is using is the edited version, if his edits are “…substantial and bear its author’s personality…” then he DOES own the rights to the image Wikimedia is using and I hope he sues the pants off them but I PERSONALLY believe that the post processing he did isn’t enough to warrant protection as a derivative work from the original ape image and I personally believe based on the info I have about copyright law and how the images were created that he does not own the rights to the original images.

    But then again … I’m not a lawyer.

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

    Not sure how:

    “They aren’t known for being particularly clever like chimps, just inquisitive. Despite probably never having any contact with humans before, they didn’t seem to feel threatened by our presence.”

    Slater said the photoshoot that resulted in these pictures took place after he set up a camera on a tripod. He left the equipment for a few moments and when he returned one of the creatures was, well, monkeying around with it.

    “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.

    … is a “predictable component”.

    The whole appeal of the image was that it was un-expected that an ape would steal a camera, operate it (somewhat) and even less take a selfie.

    Un-expected Predictable.

  • David Worthington

    I think it would be unlikely for the judge to award legal fees to either side in a case which had never been tried before, anything can happen though.

  • Kong

    ” with no intention of using it ”

    You just said it there.

    If I do have intention to capture the effect of this radio interference that you mentioned, yes, then I do own the copyright.

    Slater does intend to take a photo shoot of the monkey in this case. All the preparation work goes towards that.

  • Kong

    The keyword here is “accidentally” …

    Try dropping your DSLR camera into a zoo cage and see how many monkeys can actually pick it up, post for it, half press focus, and take a photo …

    Wikipedia would have a hard time proving that was an accident.

  • Kong

    Did you watch the video above before you comment?

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

    It contradicts interviews he made to in 2011.

  • Bolkey

    Well said. Until it can be acceptably argued that the monkeys took creative decissions they must be considered random processes. In case they did so, then still the photos are not anybody’s, but shared by both artists: The monkey would be allowed to sue the photographer, but anyone else is third party.

  • Mary Ling

    I think he should just bring wikimedia before a court, according to the existing laws.
    There is absolutely no reason, contrary to what he claims, to modify, again, copyrights laws, which since the middle of the 20th century, just means: extend copyrights for another 20 years.

  • Bolkey

    The whole point is theoretical as long as animals are no legal persons. Certainly there are people calling for animal rights, but having them to have the same rights as humans is way off, if ever they may obtain them. And then much more will change than copyright alone.

  • Kaemaril

    NOBODY is claiming the copyright belongs to the monkey, so whether the monkey has rights or not is irrelevant.

  • Kaemaril

    I agree. I think he should try it, and learn the value of the “lot of free advice” he’s been receiving. Does anyone know if he’s attempted to register the image with the US copyright office? I know he doesn’t have to to bring suit, as he’s not a US citizen, but it would have saved a lot of hassle if he had …

  • Bolkey

    I must have been under the delusion that this issue was about a ‘who owns the copyright’ argument.

  • reservoirdan

    Completely wrong. You obviously haven’t read anything about this story and neither do you have the vaguest clue about copyright. Facts are stubborn man.

  • Jack B. Siegel

    I suggest you read the rather extensive article in Newsweek that delves into the story. Four IP lawyers side with Slater. The problem here for non-lawyers is that they want a simple rule: He who clicks the shutter owns the copyright. That may be one way to secure a copyright, but that does not necessarily mean that is the only way to do so. This photographer did a lot of work to get that photograph. He set the shutter speed and aperture, he mounted the camera on the tripod, he acclimated the monkees to the camera and himself, he selected the lens, and he created the composition. He may not win, but he has an excellent case.

  • reservoirdan

    He’s got a tiny chance for IP in the UK as has been outlined in plenty of articles. No chance for copyright.

  • Jack B. Siegel

    The facts are the facts, but the Newsweek article indicates that he orchestrated the photograph. It also quotes four IP lawyers by name who indicate that this is not a clearcut case.

    While the button click may be one way that someone gains a copyright interest, I don’t see why there is not another. In resolving infringement suits in the U.S., the courts have focused on whether the party orchestrated the scene in some cases. It would seem to me that that might be one way to claim a copyright interest.

    I do hope he litigates the matter. Although the Third Edition of the U.S. Copyright Offices Compendium of Practices uses the monkey example (also an elephant painting example), the principle being illustrated is that a human must create the work, not an animal. The question is whether Slater did enough to be considered an author.

    Looking at the photo and reading the Newsweek article, I would argue that he did. That photo is “perfect” in terms of exposure, sharpness, and composition. It didn’t happen by accident.

    To me the question comes down to the old law school property case, Pierson v. Post. Who has in possession of the fox. The law relies on wooden doctrine to deliver the answer, but policy balances are being struck in the way that doctrine is being manipulated. We may find out that a button click is a sufficient way to claim copyright, but not the only way. The question is, who should get the copyright? They guy who conceived it and took the steps to make it happen, or a web site that had no involvement in the process? Of course, there are Feist issues lurking when ever we raise the sweat of the brow, but at the end of the day, it is neither you, nor I who will decide this case, but a court, if it gets to court.

  • reservoirdan

    Slater owns the photo. That’s not in question. What is in question is whether he owns the copyright and has the authority to collect money for licensing it. Furthermore, if you have read his comments you’ll know that the published photo is but one from the hundreds of out of focus throwaways. The fact is that the image is basically the only one worth publishing. That tells me it was an accident. He’s got a real tough case to prove.

  • Sean Kearney

    Oh what a lot of nonsense. The monkey took the picture so should be pubic domain.