Who owns the photo?

[thepancakeman]

I know we've had this discussion here before but couldn't find the old thread. Sounds like we may get some legal clarification after this:

http://news.msn.com/offbeat/who-owns-this-monkey%E2%80%99s-selfie-1

Short version: monkey took selfies, Wiki argues that makes it public domain. Photographer, or more accurately in this case--camera owner--says he owns the rights.

 

[tolusina]

....Wiki argues.....

^^ Key phrase.

Remove Slater's camera from the chain of events and there are no photos.
Had Slater and his camera not been on scene, there'd be no photos.
Has B&H or Adorama ever made a single sale to any crested black macaque?
Has anyone ever sold even a single banana or peanut to a crested black macaque?

Or, had Slater kept the photos to himself, wikiwhatever wouldn't have them to publish.
Doesn't seem to me that the wikifreetards have any reasonable logic to argue with.

Crested black macaques don't kill people take photographs, photographers with cameras do.

If you set up a remote camera with a motion sensing trigger, does the trigger (if inanimate objects could) own the rights? The trigger maker? The camera maker? The owner of the camera and the trigger?

Back in some Olympics or another, immediately following a major event, Usain Bolt 'borrowed' a pro photographer's camera, shot a few frames, his Body English implied, "here, let me get you a few shots from a perspective not available to you, I'll give it right back". Of course I have no idea what was actually said by Bolt and the photographer. Who owns those?

wikigreedia, can't get their own so steal. Sounds like bullying to me.

Photos are Slater's.
Wikipedia, you took them and used them using flawed self interest based logic, step up, compensate, admit, apologize in that sequence and order of importance. Freeloading another's work is theft.

The only thing public domain about these photos is wikipedia's contention that they are so.
Supporting, promoting and engaging in unauthorized appropriation of another's work and/or property is not fighting against censorship, it's theft

Lawyers don't argue for truth, honor, justice, integrity or even Law, they argue to win.
The best debaters can argue either side of an issue and still win either way. Both conclusions cannot be correct.
The best lawyers are the best debaters, the best debaters can make the best lawyers.


Some exif data extracted from.....
https://upload.wikimedia.org/wikipedia/commons/5/52/Macaca_nigra_self-portrait.jpg

Filename - Macaca_nigra_self-portrait.jpg
ImageWidth - 2912
ImageLength - 4368
BitsPerSample - 8 8 8
Compression - 1 (None)
PhotometricInterpretation - 2
ImageDescription - PIC BY A WILD MONKEY / DAVID SLATER / CATERS NEWS - (PICTURED: One of the photos that the monkey took with Davids camera. 1 of 2: This photo was the original photo the monkey took) - These are the chimp-ly marvellous images captured by a cheeky monkey aft
StripOffset - 31086
Orientation - Top left
SamplesPerPixel - 3
RowsPerStrip - 4368
StripByteCount - 38158848
XResolution - 72.00
YResolution - 72.00
PlanarConfiguration - 1
ResolutionUnit - Inch
Software - Adobe Photoshop CS4 Windows
DateTime - 2013:11:01 13:55:43
Artist - David J Slater
Copyright - Caters News Agency Ltd
IPTC/NAA - 20620
ExifOffset - 31236
ColorSpace - sRGB
ExifImageWidth - 1085
ExifImageHeight - 1500

Thumbnail: -
Compression - 6 (JPG)
XResolution - 72
YResolution - 72
ResolutionUnit - Inch
JpegIFOffset - 31374
JpegIFByteCount - 6216

 

[agierke]

Great summary tolusina! This is my understanding of intellectual property as well. Its shameful what wikigreedia is trying to argue in this case.

 

[infared]

I think that the black crested macaque owns the photo....I have always said anyone taking shots off an LCD screen and not a viewfinder is "monkeying and image". Our furry friend obviously thought so, too!!!!!! He looks like Steve Huff doing another selfie!!! :
(all kidding aside I think if the black crested macaque cannot own the photo, then the photographer who owns the camera certainly does. Right???).

 

[Orangutan]

<IANAL>
If you give paints, paintbrush and canvas to an elephant do you own the resulting painting or does the elephant's owner own the painting? It was the macaque's use of the camera that was transformative. Since animals are generally considered property, it seems likely the macaque's owners own the photos.
</IANAL>

 

[tolusina]

Some more.....

The MSN article linked above states in part....
"......When a monkey commandeered a nature photographer’s camera on a small Indonesian island a few years ago, the results were extraordinary....."
- - -
wikimedia's page at http://transparency.wikimedia.org/content.html
states in part......
“.......A photographer left his camera unattended in a national park in North Sulawesi, Indonesia........ “
- - -
David J Slater's website,
http://www.djsphotography.co.uk/Tropical%20Forests/Sulawesi%20Macaques.htm
remember, he was the guy that was there, states in part....


"…...So I put my camera on a tripod with a very wide angle lens, settings configured such as predictive autofocus, motorwind, even a flashgun, to give me a chance of a facial close up if they were to approach again for a play. I duly moved away and bingo, they moved in, fingering the toy, pressing the buttons and fingering the lens. I was then to witness one of the funniest things ever as they grinned, grimaced and bared teeth at themselves in the reflection of the large glassy lens. …..
…....They played with the camera until of course some images were inevitably taken! I had one hand on the tripod when this was going on......"

- - -
Slater's version does not sound at all like MSN's “commandeered”, nor wikimedia's “ unattended”.

... macaque's owners....

The macaque is wild, owns its own self.

---
Hey Slater!!
Should you happen to stumble on this, GREAT PHOTOS!!

 

[Orangutan]

Slater's version does not sound at all like MSN's “commandeered”, nor wikimedia's “ unattended”.

Depending on Indonesian law, that may be irrelevant. Even if it was intentional, the critter framed and clicked. For example, consider a "free" photo booth. You set it up and people go inside and take photos of themselves. Does the owner of the photo booth own those? Not likely. Setting up the gear may be irrelevant; it's probably a question of who frames the shot. In this case, it was the critter.

... macaque's owners....

The macaque is wild, owns its own self.

In those cases, animals are generally presumed to be owned by the sovereign government, so Indonesia likely owns the photos. In the absence of an international treaty, it seems likely they'll win the case in an Indonesian court.

 

[Lurker]

The one pressing the shutter button owns the photo, it is their creative property.

 

[Orangutan]

The one pressing the shutter button owns the photo, it is their creative property.

So if you set up a shot on tripod, and your assistant does nothing more than press the button on a wireless shutter release (and doesn't even look through the viewfinder) then the assistant owns the shot? I find that very hard to believe.

 

[pablo]

I do timelapse videos. I press the timer start button once to start it and once to stop it.

Do I own frame 1 of the finished video and the timer owns the remaining 249 of a 10s sequence?

 

[alfredo]

There's a difference between the author of the photo, and the copyright holder.

When you write software for a software company, you, the individual, are the author, but the company pays you to do the job, and they hold the copyright on the software you write.

Of the several cases cited in this thread, I think making the distinction between author and copyright holder helps cleaning up the scenario.

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.

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).

In the "Bolt borrowing a camera" case, Bolt is certainly the author. One may dispute on the copyright: the camera owner may have said: "I'm borrowing you the camera to do the (unpaid) job of taking a picture, in return of using my camera, you'll transfer to me the copyright of the work you'll produce". Or, the photographer may just have decided to give up on the copyright.

For the photo booth case, again, the customer pays a fee to the machine, to hold the copyright of the result. When you go to a professional photographer, it's up to you to negotiate who holds the copyright on the session pictures. Typically prices are much higher if the customer goes away with the copyright, because it means the photographer won't be able to resell those pictures.

Interesting reading: http://www.gnu.org/licenses/gpl-faq.html#HowIGetCopyright

I'm a big open source fan, and even more I appreciate Wikipedia, but I'd say this time they went a bit too eager.

 

[alfredo]

So if you set up a shot on tripod, and your assistant does nothing more than press the button on a wireless shutter release (and doesn't even look through the viewfinder) then the assistant owns the shot? I find that very hard to believe.

I'd say both the photographer and the assistant are co-authors of the photo (in that order). The photographer holds the copyright; the assistant was paid to do the job, transferring her share of the copyright to the photographer, as part of the contract.

 

[RGF]

<IANAL>
If you give paints, paintbrush and canvas to an elephant do you own the resulting painting or does the elephant's owner own the painting? It was the macaque's use of the camera that was transformative. Since animals are generally considered property, it seems likely the macaque's owners own the photos.
</IANAL>

Agree, from a non-lawyer, I would vote for the owner of the animal owns the picture.

 

[anthonyd]

The one pressing the shutter button owns the photo, it is their creative property.

So if you set up a shot on tripod, and your assistant does nothing more than press the button on a wireless shutter release (and doesn't even look through the viewfinder) then the assistant owns the shot? I find that very hard to believe.

You have an assistant for pressing the button on a wireless release? wow you must be a busy photog. :-D

 

[Orangutan]

The one pressing the shutter button owns the photo, it is their creative property.

So if you set up a shot on tripod, and your assistant does nothing more than press the button on a wireless shutter release (and doesn't even look through the viewfinder) then the assistant owns the shot? I find that very hard to believe.

You have an assistant for pressing the button on a wireless release? wow you must be a busy photog. :-D

 

[Orangutan]

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.

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.

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.

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.

 

[Besisika]

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]

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.

 

[Lloyd]

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.

 

[scyrene]

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.