October 01, 2014, 12:45:54 AM

Author Topic: Who owns the photo?  (Read 7155 times)

Orangutan

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Re: Who owns the photo?
« Reply #15 on: August 07, 2014, 05:33:28 PM »
You're making a lot of assumptions.

nor it can legally hold copyright
The owner of the macaque can own copyright.  In this case, they probably do.

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the creative action of setting up the environment makes the copyright belong to the photographer.
But he didn't: he set up the camera, not the creative environment.  If the camera had been fixed with a tripwire of some kind, then the photographer could claim ownership.  As soon as the macaque takes physical control of framing the shot, it's no longer the photographer's.

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If the button was triggered by a motion sensor, I'd say that both author and copyright holder are the photographer (as the motion sensor is inanimate).
Correct result, wrong reason.  The reason is that your setup of the motion sensor is deterministic: it's known, with a very high degree of certainty, what the framing of the shot will be.  The fact that you determined the framing (even if that's in advance) is what makes you the creative force of the photo.

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the customer pays a fee to the machine, to hold the copyright of the result
You're assuming an implicit contract, which would require explicit statutory language, or a long history of common law.  I wouldn't accept that assertion from anyone short of an IP lawyer.


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Re: Who owns the photo?
« Reply #15 on: August 07, 2014, 05:33:28 PM »

Besisika

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Re: Who owns the photo?
« Reply #16 on: August 07, 2014, 05:43:11 PM »
It is just my interpretation and hope you take it that way. I am not a lawyer of any kind.

It is not that obvious.

According to CAPIC, quote:
"Copyright is comprised of international laws that protect “intellectual property.” These laws, which vary from one country to another, also apply to patents, trademarks, industrial designs and trade secrets.

In short, Copyright protects the expression of original ideas, but not the information itself. This expression is referred to as “work” or, in the case of photos and illustrations, “artistic work”. Copyright consists of a set of rules on how the “work” can be used."

The photo is that good thanks to all the "creativity" parameters and events that took place, whether they are on purpose or circumstantial. If any of these factors was different it would be a different photo, a better or worse. Among other things; the choice of camera, the lens and focal length, the aperture and shutter speed, the ISO, the vantage point, the distance from the subject and so on.

On one hand, who ever chose the camera, the lens, brought the it there, turned it on, configure its parameters and so on takes part in creating the result. If he configured it differently, the photo would be totally different and might or might now win anything.

On the other hand, who ever chose the vantage point, the stability of the camera, its distance from the focusing point and so one contributed to its success as well.

My opinion, there are 3 key components in the content of the copyright law: 1- action, 2 - artistic creativity, 3 - intellectual property. Finally, let's not forget its purpose which is to promote creativity.

Unfortunately, the photographer had the idea and contribute greatly in the "artistic creativity, but didn't take the photo and as such is not the sole creator of the tangible art, despite the creative contribution.

On the other hand, giving to the monkey the right to the photo doesn't promote any creativity at all. No photographer would work that hard so that his right would be given to a Monkey. No photographer, no creativity, no photography, no improvement, nothing to promote, empty law.

Besides, I don't recognize any intellectual contribution that is worth protecting in the monkey act (or the assistant just pressing the button of a camera on a tripod).
My opinion, the photographer owns it, at least for the sake of encouraging him to push monkeys for selfie.
Anyone else wanting to take that privilege is just a thief wanting to take advantage of his hard work.

In Canada, the photographer owns the copyright, not the employer - See CAPIC website for detail:
"The Copyright Act was amended in the spring of 2012, under Bill C-11, rectifying the injustice that prevailed hitherto, while the copyright of photographs that were ordered belonged to the client by default.

Canadian photographers are now, by default, the first owners of the copyright of the images they produce, as are illustrators, musicians, painters and writers with their respective work. This applies to both photographs commissioned and paid by a client, and to photographs taken for non-commercial purposes."

unfocused

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Re: Who owns the photo?
« Reply #17 on: August 07, 2014, 06:35:17 PM »
It would be entertaining to see how this plays out.

A big question is whether or not the photographer actually went to the trouble of getting a copyright on the photo in the first place. (Yes, lots of people put the copyright symbol on their photos but never bother to file the paperwork. Doing so preserves some rights, but it's not an absolute guarantee of copyright)

I suspect that in this case, had the photographer actually copyrighted the picture, then Wikipedia would be in quite a weak position because the copyright would serve as an official designation that the government has declared that the right to the photograph belongs to the photographer. If you have an official copyright from the Government, it's unlikely that a court is going to say that is invalid.

But, if the photographer simply placed a copyright on his files and never followed up with paperwork, well, then that's another question. If that's the case, then Wikipedia could well argue what they are arguing now -- which is that he never had the ability to secure the copyright. Under that situation, the photographer is likely to have to prove that he does indeed have the right to a copyright.

First situation, Wikipedia would have to prove he never had the right to the copyright -- burden of proof should be on them to show that the government erred in awarding the copyright.

Second situation, photographer must prove he has the right to copyright the photo -- burden of proof likely to be on him to prove that he should be awarded the copyright.

Now, the other question might be just what exactly does that copyright protect? If the photograph has been widely circulated without any copyright designation, the photographer might be in a weak position to now claim copyright.

Additionally, since the copyright protects the photographer's financial interest and is not an absolute bar to using the photo, court might have to determine what his financial loss is from the violation. He could win the copyright case and be awarded $1.

And, finally, copyright is not an absolute bar to reproducing a creative work. There are exceptions for educational, critical and artistic uses. Might not apply in this case, but it can apply in others.

This may never be litigated, but if it is, it will be interesting.
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Lloyd

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Re: Who owns the photo?
« Reply #18 on: August 07, 2014, 07:19:00 PM »
You guys are overanalyzing this.  An elementary legal analysis reveals that justice will likely be on the side of Wikimedia, with Mr. Slater having a small chance and the monkey having no chance at all of gaining rights to the photo.

The Wikimedia Foundation, which operates Wikipedia, the entity which distributed the photo without recognizing Mr. Slater’s claim to a copyright, has revenues of US$48.6 million and cash equivalents of $22.2 million.  It can retain many lawyers.

Mr. Slater, from Coleford, Gloucestershire, is a nature photographer and his revenue is probably less than US$48.6 million.  He can probably retain fewer lawyers.

Mr. Macaque has no revenue or cash equivalents. He throws feces at lawyers.
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scyrene

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Re: Who owns the photo?
« Reply #19 on: August 07, 2014, 07:42:40 PM »
It would be entertaining to see how this plays out.

A big question is whether or not the photographer actually went to the trouble of getting a copyright on the photo in the first place. (Yes, lots of people put the copyright symbol on their photos but never bother to file the paperwork. Doing so preserves some rights, but it's not an absolute guarantee of copyright)

I suspect that in this case, had the photographer actually copyrighted the picture, then Wikipedia would be in quite a weak position because the copyright would serve as an official designation that the government has declared that the right to the photograph belongs to the photographer. If you have an official copyright from the Government, it's unlikely that a court is going to say that is invalid.

But, if the photographer simply placed a copyright on his files and never followed up with paperwork, well, then that's another question. If that's the case, then Wikipedia could well argue what they are arguing now -- which is that he never had the ability to secure the copyright. Under that situation, the photographer is likely to have to prove that he does indeed have the right to a copyright.

First situation, Wikipedia would have to prove he never had the right to the copyright -- burden of proof should be on them to show that the government erred in awarding the copyright.

Second situation, photographer must prove he has the right to copyright the photo -- burden of proof likely to be on him to prove that he should be awarded the copyright.

Now, the other question might be just what exactly does that copyright protect? If the photograph has been widely circulated without any copyright designation, the photographer might be in a weak position to now claim copyright.

Additionally, since the copyright protects the photographer's financial interest and is not an absolute bar to using the photo, court might have to determine what his financial loss is from the violation. He could win the copyright case and be awarded $1.

And, finally, copyright is not an absolute bar to reproducing a creative work. There are exceptions for educational, critical and artistic uses. Might not apply in this case, but it can apply in others.

This may never be litigated, but if it is, it will be interesting.

Now I thought I understood the basics of photography copyright (cos it's useful for us snappers!), and that was that copyright does not need to be applied for. The creator of the work (let's ignore for now this case, and cases where you do a job for someone else, contracts etc) owns the copyright. I take a photo, its copyright belongs to me. I can release my claim to it, but doing nothing means I own the rights to it. I don't have to file paperwork. If down the line someone uses it without my permission, all I need to do is demonstrate it was me who took it, say by providing the raw image, or proving I was there and the other person wasn't.

Is that not right? Is that only the case in the UK?

PS on this story, animals aren't generally treated as people, so I don't see how the monkey can own anything. As for the other parties involved, I'll leave that to the lawyers.
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AlanF

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Re: Who owns the photo?
« Reply #20 on: August 07, 2014, 09:36:26 PM »
Yes, you are correct. Copyright does not have to be applied for. It belongs to the photographer, unless he is working under contract and it belongs to his employers. If two or more people are involved in taking the photo, the copyright belongs to all of them. In the case of the monkey, the owner of the photo has no claim to copyright as he did not make any intellectual contribution to the taking of the photo or its composition. The argument that he provided the equipment does not make any difference to ownership of copyright, legally and also logically - you might as well as argue that the photo could not have been taken without the manufacturer of the equipment - the lens, the sensor etc.
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preppyak

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Re: Who owns the photo?
« Reply #21 on: August 07, 2014, 09:41:10 PM »
We may argue whether the monkey or the photographer are the author of the photo, but since the monkey has no will of creative production, nor it can legally hold copyright, the creative action of setting up the environment makes the copyright belong to the photographer.
I agree with all of your other conclusions except this one, and it depends greatly on how a court would interpret Slater's intent. If he intended to get those shots, then yes, he would own copyright. If they believe he didn't intend and it was sheer luck, then nobody would own the copyright, and Wikimedia would be right in claiming them public domain. If he had set up the camera on a tripod knowing the monkeys would go to it and take photos, then he'd have a reasonable claim. But that doesn't sound like its the case

Obviously a monkey cant own a copyright, but, that doesnt mean the copyright goes to the next in line. As there was no contract, and possibly no creative intent, its quite possible nobody owns the photo
« Last Edit: August 07, 2014, 09:48:24 PM by preppyak »

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Re: Who owns the photo?
« Reply #21 on: August 07, 2014, 09:41:10 PM »

anthonyd

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Re: Who owns the photo?
« Reply #22 on: August 07, 2014, 09:43:56 PM »
...
Mr. Macaque has no revenue or cash equivalents. He throws feces at lawyers.

Priceless!

preppyak

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Re: Who owns the photo?
« Reply #23 on: August 07, 2014, 09:45:42 PM »
Now, the other question might be just what exactly does that copyright protect? If the photograph has been widely circulated without any copyright designation, the photographer might be in a weak position to now claim copyright.
Yep, unless he has asserted his rights to other publications, it may not ultimately matter. Copyright partially relies on your willingness to defend it.

That said, if he does have the copyright to this photo, Wikipedia could be sued for quite a bit of money. They willingly subverted his copyright (multiple takedown requests, now articles on it), which carries a much heftier fine that unknowingly violating copyright.

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And, finally, copyright is not an absolute bar to reproducing a creative work. There are exceptions for educational, critical and artistic uses. Might not apply in this case, but it can apply in others.
There's also the interesting argument that he created a derivative work (which he would own copyright to), and people are stealing that.

But, the act of cropping, color correcting, and rotating are probably not enough to make that claim

DominoDude

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Re: Who owns the photo?
« Reply #24 on: August 07, 2014, 09:53:04 PM »
I'm voting for Slater in this case. Especially after reading what he put out on his site when this shot was first published, and from the looks of the Exif in the photo. I don't know what the laws says in his country, but if anywhere near ours it should still go to Slater, or the company for which he worked then.

Slight sidenote: After reading Lloyd's comment in this thread, it's quite obvious that I could change my nickname to "Mr. Macaque" - at least two, maybe three, statements from that fits a description of me. ;)
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sagittariansrock

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Re: Who owns the photo?
« Reply #25 on: August 07, 2014, 09:56:09 PM »
Based on the photographer's story, it does seem that he had a big role in creation of the image. He set it up with the relevant settings and the whole thing happened completely under his 'direction'. If you set up a camera so that it is likely to be tripped by curious macaques, isn't it similar to setting up a camera to be tripped by motion, or by automation (timers, etc.). It is pretty silly to say you have to have your finger on the shutter to own the image.

On the other hand, considering the downsides to being sued and losing, I doubt if Wikipedia would have done this unless they were absolutely sure they can't be touched. I will call them jerks, because here is a photographer who has contributed to these images being captured (and I believe him, what are the chances that a macaque comes upon a camera with wide angle and predictive AF set up just accidentally?), and shared his images for everyone to see- why would you want to yank him around? Why would you deprive him of revenue?
« Last Edit: August 07, 2014, 10:08:03 PM by sagittariansrock »
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unfocused

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Re: Who owns the photo?
« Reply #26 on: August 07, 2014, 11:11:37 PM »
Now I thought I understood the basics of photography copyright (cos it's useful for us snappers!), and that was that copyright does not need to be applied for. The creator of the work (let's ignore for now this case, and cases where you do a job for someone else, contracts etc) owns the copyright. I take a photo, its copyright belongs to me. I can release my claim to it, but doing nothing means I own the rights to it. I don't have to file paperwork. If down the line someone uses it without my permission, all I need to do is demonstrate it was me who took it, say by providing the raw image, or proving I was there and the other person wasn't.

Well, I did a little reading up, to see if my memory served me correctly. It does seem some things have changed a bit since I was in school and generally things are now more favorable toward the creator of a work.

From what I can tell, the key distinction is that while the copyright does not have to be applied for, as you state,  it may be difficult to enforce the copyright if you do absolutely nothing. At a minimum, it seems a good idea to use your software's ability to embed the copyright in the electronic file and to display a copyright symbol when practical.

I guess I would err on the side of caution and at least include a copyright claim in the electronic file. A simple and automated step that could help prevent confusion down the road.
« Last Edit: August 07, 2014, 11:13:38 PM by unfocused »
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Orangutan

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Re: Who owns the photo?
« Reply #27 on: August 07, 2014, 11:28:33 PM »
Now I thought I understood the basics of photography copyright (cos it's useful for us snappers!), and that was that copyright does not need to be applied for. The creator of the work (let's ignore for now this case, and cases where you do a job for someone else, contracts etc) owns the copyright. I take a photo, its copyright belongs to me. I can release my claim to it, but doing nothing means I own the rights to it. I don't have to file paperwork. If down the line someone uses it without my permission, all I need to do is demonstrate it was me who took it, say by providing the raw image, or proving I was there and the other person wasn't.

Well, I did a little reading up, to see if my memory served me correctly. It does seem some things have changed a bit since I was in school and generally things are now more favorable toward the creator of a work.

From what I can tell, the key distinction is that while the copyright does not have to be applied for, as you state,  it may be difficult to enforce the copyright if you do absolutely nothing. At a minimum, it seems a good idea to use your software's ability to embed the copyright in the electronic file and to display a copyright symbol when practical.

I guess I would err on the side of caution and at least include a copyright claim in the electronic file. A simple and automated step that could help prevent confusion down the road.

It's my understanding that in the U.S. you gain copyright protection automatically; however, if you don't register a particular photo you can only recover "actual damages" -- i.e. what you could have charged for the photo in that situation.  If you do register you can also collect "statutory damages," which amounts to a much larger, punitive claim.

CAUTION: Never take legal advice from some random guy on the Internet!!


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Re: Who owns the photo?
« Reply #27 on: August 07, 2014, 11:28:33 PM »

expatinasia

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Re: Who owns the photo?
« Reply #28 on: August 08, 2014, 12:13:15 AM »
I heard a rumour that when the monkey picked up the camera he changed the settings. It is not clear whether he changed them more than once, nor what the actual settings were before...  ;D

Only that big man in the sky knows whether the monkey did it intentionally, or not.

Quite amazing the stuff some media will cover these days! I am sure the photographer is benefitting from all the exposure anyway.
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Daniel 78d

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Re: Who owns the photo?
« Reply #29 on: August 08, 2014, 12:38:33 AM »
So if somebody steals my camera and takes a picture of themselves (they) have right to the picture? No. It sounds like wiki was playing the "he makes a good point" game and won.
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Re: Who owns the photo?
« Reply #29 on: August 08, 2014, 12:38:33 AM »