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back to article Simian selfie stupidity: Macaque snap sparks Wikipedia copyright row

When a black macaque on the Indonesian island of Sulawesi took a selfie using photographer David Slater’s camera in 2011, it broke the barrier between man and monkey in more ways than one. Yes, it showed the world that speechless beasts are as self-obsessed – and location-aware – as humans. Give a monkey a camera and, inevitably …

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Trollface

Re: There is a definite resemblance.

Except that no photo of Jimmy Wales is popping up right now in a million messages that end in the phrase "... has changed their profile picture".

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Re: Good article.

Wikimedia takes down pics all the time. Perhaps in this particular case, the legality is so grey that they feel no reason to do it. Perhaps they are right in saying that if a human doesn't take the picture that it's not theirs to hold copyright on. It'd have to be tested in a court of course but it's still an interesting argument.

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Re: Good article.

" if a human doesn't take the picture that it's not theirs to hold copyright "

On the other hand, if a monkey cannot hold copyright, then surely it should be taken down as nobody rightfully holds copyright? The rules are that something is not public domain unless the creator says otherwise.... Well? Who said otherwise, Jimmy?

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Re: Good article.

> On the other hand, if a monkey cannot hold copyright, then surely it should be taken down as nobody rightfully holds copyright? The rules are that something is not public domain unless the creator says otherwise.... Well? Who said otherwise, Jimmy?

No, it's actually the other way around.

Something that is not copyrighted is public domain by default.

Copyright is granted by law. Public domain is what applies for anything else.

You can certainly give something to the public domain that you hold a copyright on, however, which is what I think you mean.

When copyright expires (which may never happen in the US if Disney manage to get yet another extension for Steamboat Willy) public domain is what the work falls into. The copyright holder has no choice in the matter.

It is further confused by the fact that all creative works are granted automatic copyright in many countries now.

Personally, I think that the monkey has a good case for ownership of this picture. Inasmuch as the photographer must prove that the photo is his creation, he clearly can't. Therefore, he cannot claim copyright over it.

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Re: Good article.

The tragedy of commons does not apply. It's based on a limited resource, unless you are alleging that there are a limited number of times I can copy the monkey-selfie.

Photos are fundamentally different then mines.

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JDX
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Re: Good article.

If you own a monkey and the monkey takes a photo, do you own the photo in that case?

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Re: Good article.

> If you own a monkey and the monkey takes a photo, do you own the photo in that case?

That's an interesting legal question.

Others have quoted the common situation of a photographer's assistant taking a picture but copyright being conferred on the photographer rather than an assistant. I suspect that this is resolved a "common practice" or by some legal contractual undertaking related to the terms of employment of the assistant. Certainly as a programmer, I cannot claim copyright over code I write while working for my employer: my employment contract says so.

Personally, I think the legal situation involved where you own an animal that takes a picture is a difficult one. There is no contractual arrangement and I think it is fair to say that there is little legal precedence to draw on here so it may be that it could be argued that no copyright ownership exists.

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Re: Good article.

So by extension, if a robot, drone, space satellite takes a picture, the image can't be copyrighted? Hmm... something just doesn't feel right about this whole mess.

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Re: Good article.

no because said objects are inanimate and the action initiated by a human even if that was the programmer. The monkey has free will.

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Re: Good article.

>>"The monkey has free will."

Will requires intent. Are you suggesting the monkey knew it was taking a photograph? If not, then its random behaviour resulting in one is not something it willed. It is, in this context, just part of the environment. Might as well have tied the shutter button to a tree branch and let the wind take the photo. Would that also have removed copyright then?

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Coat

Re: Good article.

"If you own a monkey and the monkey takes a photo, do you own the photo in that case?"

Is that based on the primate facie evidence?

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Re: Good article.

"Personally, I think that the monkey has a good case for ownership of this picture. Inasmuch as the photographer must prove that the photo is his creation, he clearly can't. Therefore, he cannot claim copyright over it."

If I use the time delay feature that has been standard in cameras for decades, the camera takes the picture (usually with me in it), but I set it up. No-one in the last few decades has seriously attempted to claim that I don't have copyright in that picture.

So if I give the camera to a monkey, hoping that the monkey will take a selfie, I've set up that picture too. Why shouldn't I have the copyright? If the monkey is too stupid to have any legal standing, why should it be smart enough to trump my IP rights? Where do you draw the line, and are you trying to stand with one leg on either side of it?

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Re: Good article.

"he rules are that something is not public domain unless the creator says otherwise.... Well? Who said otherwise, Jimmy?"

Uhh, hate to brake it to you but the law says otherwise - you got it exactly (ass-)backwards: UNLESS it's claimed by someone it is public domain BY DEFAULT.

"Who said otherwise, Jimmy?"

Umm, everybody, heyrick.

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Re: Good article.

Is that based on the primate facie faeces evidence?

FTFY

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Re: Good article.

"Is that based on the primate facie evidence?"

With monkeys, I believe primate faeces has much more weight.. And velocity.

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Joke

Re: Good article.

The problem here is that Wikimedia just don't give a monkeys.

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Re: Good article.

"Will requires intent. Are you suggesting the monkey knew it was taking a photograph? "

It didn't know it was taking a photo, but it certainly knew it was pressing the shutter button, presumably because it had just seen the photographer press the same button.

Now there's a textbook case of "monkey see, monkey do"

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Re: Good article.

" If the monkey is too stupid to have any legal standing, why should it be smart enough to trump my IP rights? Where do you draw the line, and are you trying to stand with one leg on either side of it?"

Monkeys' legal standing has nothing to do with their stupidity or otherwise, it has to do with their not being human, and human laws being species-ist. Sure, the photographer can argue that he 'set up' the photo, but unlike your time-lapse camera, (or as someone mentioned above, cameras in robots, satellites etc that are ultimately controlled by a human agency) the monkey DID have a choice of whether or not to take the photo, requiring an active decision on the part of an intelligent sentient being.

Fast-forward a bit to the future, when you can possibly have AI 'beings' that can and do choose to compose and take their own snaps, can they own copyright simply because they are as intelligent as humans? Or is any non-human automatically excluded irrespective of intelligence? And if non-humans are excluded from owning IP, where do we leave companies, who in many respects currently have the same* legal status as persons?

These aren't simple questions and don't have easy answers, and the answers we arrive at will certainly have far-reaching consequences.

*more advantageous, actually

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Re: Good article.

My problem with this is that as far as I understand the photographer had specifically setup the camera so that the Macaques could trigger it. He had placed the camera and set the exposure, focus, etc. to take the picture, and simply left the button as a trigger.

I cannot see how this is any different from a photographer who uses other forms of trigger mechanisms, such as movement, heat, noise, etc to take a picture when there is a subject around. Are you saying that all of these photographs are also public domain? This seems a rather sweeping generalisation to take, and would cause problems for a number of wildlife photographers, but otherwise I cannot see how to distinguish them from the case here.

The Macaque did not "take" the picture as this implies intent and some sort of understanding of what it was triggering. The person with the intent and understanding was David Slater, who setup the situation so that a particular action by the Macaque would cause the picture to be taken with David Slater's equipment. As a result I cannot see how he is not responsible for, and therefore the author of, the image.

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Re: Good article.

Maybe in Westpondia, but in civilised countries a work is assumed to be copyright unless proven otherwise

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Re: Good article.

As a former photographer I can tell you that the copyright belongs to the person who snapped the photo unless that person is an employee, in which case the copyright belongs to the employer. The person I this case did not take the photo and the animal is not an employee so technically it owns the copyright.

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(Written by Reg staff) Silver badge

Re: Good article.

@Levente: "UNLESS it's claimed by someone it is public domain BY DEFAULT."

Well, that explains a lot. You don't understand how copyright works.

The first Berne Convention in 1886 specified copyright is automatic. You don't need to register, fill out any paperwork, or draw a symbol. You don't need to re-apply to retain your rights. Almost every country is a Berne signatory today.

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Re: Good article.

> Well, that explains a lot. You don't understand how copyright works.

The distinction is subtle and I think there is a confusion of semantics here.

Copyright is granted by law. If it is not, in any specific case, then public domain is what is left, by default. I think that is what most people would assume that the comment means.

I don't think that anyone is arguing about the legal situation of the automatic granting of copyright to creators.

In this particular situation, there is the suggestion of a grey area where a creative work could be created without it being possible to bestow copyright on the creator because they don't have sufficient legal status. In that situation, public domain is therefore the only alternative, even though it is not mandated specifically by statute.

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Re: Good article.

> If I use the time delay feature that has been standard in cameras for decades, the camera takes the picture (usually with me in it), but I set it up. No-one in the last few decades has seriously attempted to claim that I don't have copyright in that picture.

I really think some of the commentators here should take a look at the facts of the article.

The picture was not "set up". The photographer contributed absolutely nothing to the taking of this picture:

=================

"British nature photographer David Slater was in Indonesia in 2011 attempting to get the perfect image of a crested black macaque when one of the animals came up to investigate his equipment, hijacked a camera and took hundreds of selfies.

Many of them were blurry and some were pointed at the jungle floor, but among them were a handful of fantastic images - including a selfie taken by a grinning female macaque which made headlines around the world and brought Mr Slater his 15 minutes of fame.

"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 said at the time. "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.

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."

=======================

What the photographer is arguing about is not his moral rights. He is not even asserting that he took the picture or contributed to it in a creative capacity.

He is arguing that it was his camera so it should be his copyright:

============

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 said.

============

His main argument seems to be that his trip was expensive, the equipment is expensive and it's his so he deserves to get copyright of the snaps.

As a legal argument, I think that's pretty thin.

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Paris Hilton

"Wikimedia says the monkey's money shot is free for all and sundry to use."

Monkey porn now ? and no I don't want pictures...

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Who takes the picture?

A lot of wildlife photographers set up cameras which are triggered by animals. Are all these now copyright-free because they were "taken" by the subject?

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Re: Who takes the picture?

Pretty much what I was thinking. If I setup a machine to automatically capture an image (say when a bird visits a bird-feeder), do I lose all rights to the image because I didn't "press the button" myself? I think not...

I know the freetards are saying that the monkey "took" the photo and not the photographer, but it was the photographer who set up the camera and arranged things just so the photo could be taken. Therefore, the effort was his and so the photograph is his in exactly the same way as if the photo was triggered by a motion detector etc

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Re: Who takes the picture?

Alternatively what happens if you have a camera triggered by a PIR sensor? You catch that pic of a burglar breaking into your house you cant use the photo as it's copyrighted by the burglar as 'they' triggered the shot?

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Re: Who takes the picture?

And in this case he didn't lose the camera; he set everything up to enable the macaque to take the shot.

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Re: Who takes the picture?

If I get some passing stranger to take a picture of me, using my own camera, who owns the copyright?

I'd expect that to be me. And I suspect that the legal system has already tested this at some point...

[5 mins later..] And indeed. I've just tracked down this!!!

http://www.ipwhiteboard.com.au/who-owns-the-copyright-in-your-family-holiday-photographs-what-about-a-selfie-the-answer-is-not-what-you-would-expect/

(albeit for Australia or New Zealand), which would seem to support Wikipedia and not me.

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Re: Who takes the picture?

<<<And in this case he didn't lose the camera; he set everything up to enable the macaque to take the shot.>>>

No, the photographer did not set up the shot, and hadn't intended to have the macaque take or trigger the shot. The Macaque unexpectedly grabbed a camera and started playing with it, taking pictures.

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Re: Who takes the picture?

I think the problem here is the definition (or lack of it) of what is significant enough contribution to work, to make it pass copyright test.

It might be that in the case of actually lost camera, there is no "significant contribution" on the side of camera owner.

It might also be that in case of Mr Slater, the camera was not lost but made ready for simians to use and also that he made significant contribution by first setting up conditions for pictures to be taken and then removing all blurred photos afterwards, selecting good ones and preparing them for publication. To me this seems like nontrivial endeavour.

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Flame

Re: Straw man. This is about intention.

No, this is about the law. the law does not recognise the 'person' or the 'intent' or even the 'who' of the monkey. Arguments about how other parties may involve themselves in the taking of a photograph are irrelevant; the monkey is not another 'party' (however plentifully supplied with PG Tips it may be ;-). You can only take Slater's rights away if there's another party involved that you can claim was at least partly responsible for the image, and there isn't.

And even if it was a Straw Man, scarecrows are similarly unrecognised. It's the lack of brains, you see...

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Monkies / apes can take photos

I remember a chimp on a national geographic special that used a polaroid camera to take photos. The chimp picked the subject, aimed the camera, and took the photo, then waited for it to develop. No different then teaching a child to take a photo.

Not the same as an automatic wildlife camera at all.

So clearly the copyright belongs to the ape.

Unless the law states that copyright can only be held by humans. Or the ape is property and like a slave all the apes property is the owners property.

I don't see anyway the copyright can belong to the owner of the camera.

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Anonymous Coward

Re: Who takes the picture? @fishman

No, the photographer did not set up the shot, and hadn't intended to have the macaque take or trigger the shot. The Macaque unexpectedly grabbed a camera and started playing with it, taking pictures.

The photographer had a fair bit more involvement in the process than you give him credit for.

"I became accepted as part of the troop, they touched me and groomed me... so I thought they could take their own photograph.

"I set the camera up on a tripod, framed [the shot] up and got the exposure right... and all you've got to do is give the monkey the button to press and lo and behold you got the picture."

http://www.bbc.co.uk/news/uk-england-gloucestershire-28674167

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Re: Who takes the picture?

>>"No, the photographer did not set up the shot, and hadn't intended to have the macaque take or trigger the shot. The Macaque unexpectedly grabbed a camera and started playing with it, taking pictures."

It's not as if the photographer was sitting at home with a camera on the shelf and a macaque burst in and started using it. He had travelled there, managed to get close to the troupe, provided the equipment and was actively engaged in photography work on them. He got lucky and in amongst that a Macaque pressed a button. But don't make it sound like there wasn't a whole lot of effort, expense and time involved here on the photographer's part. Also, this is a very big deal to an individual. This is how he makes his living and this is a major win for him. Or it would be if people didn't want to exploit this to take it for free. It's little to all of us if he has the copyright. But it's a major thing to this individual.

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Anonymous Coward

Re: Who takes the picture?

http://www.ipwhiteboard.com.au/who-owns-the-copyright-in-your-family-holiday-photographs-what-about-a-selfie-the-answer-is-not-what-you-would-expect/

Is Dickens out of copyright? Can I quote his famous line "the law is a ass"?

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Re: Who takes the picture?

Ah, but you see, having pressed the button, the monkey then went on to transfer the images to a computer, select the best ones, crop them appropriately choosing suitable proportions to frame the image, did any post-work on the photo to make it look its best, and then submitted it online to the world itself.

It wasn't the photographer who did all this! Not at all!

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Ah, but you see

So if I take your photos, and transfer the images to a computer, select the best ones, crop them appropriately choosing suitable proportions to frame the image, did any post-work on the photo to make it look its best, and then submitted it online to the world itself. Then they are mine now?

Sorry don't think so.

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Re: Ah, but you see

>>"So if I take your photos, and transfer the images to a computer, select the best ones, crop them appropriately choosing suitable proportions to frame the image, did any post-work on the photo to make it look its best, and then submitted it online to the world itself. Then they are mine now?"

Well the altered versions you had worked to produce would not be my intellectual property unless we had worked something out, but they'd be a derivative work based on my original so you wouldn't be able to use them either, without my consent.

In the case of the photographer, there's no pre-existing owner that all that effort is a derivative work from. You can try and argue that the monkey constitutes such, but you'd be trapping yourself in a contradiction since the Wikipedia argument is based on the idea that a monkey-triggered photograph doesn't have a copyright owner.

Trying to take my own argument and swap it around, actually just puts you in an even worse position with regards the ownership.

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Re: Who takes the picture?

"what-about-a-selfie-the-answer-is-not-what-you-would-expect"

So, under this particular law, the ape owns the copyright.

Unless Slater paid the ape (in Bananas?) to commission the photos.

Can a monkey own something? If no is there something in the law that gives the camera owner second dibs over the general public. If yes who is the monkey's agent?

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Re: Ah, but you see

"Trying to take my own argument and swap it around, actually just puts you in an even worse position"

But I never said Wikipedia was right. I just said that playing with the photo didn't affect the copyright of the original photo at all. Your post is a classic straw man.

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Re: Ah, but you see

>>"But I never said Wikipedia was right. I just said that playing with the photo didn't affect the copyright of the original photo at all. Your post is a classic straw man."

Then I'll clarify - doing creative work on something that doesn't have an owner introduces copyright. A rock may not have copyright. If I turn it into a sculpture, it might. A publically owned work such as a folk song or a classic film might not have copyright on it. But when I rearrange it or re-edit that film with others in interesting ways, it might. Your argument that additional creative work does not transfer existing copyright ownership is not reconcilable with the Wikipedia position that there was no pre-existing copyright. Additionally, there is a very strong case that the photographer does have copyright over the original on his camera anyway. Leaving us with TWO strong arguments against Wikipedia's position.

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Anonymous Coward

Re: Who takes the picture?

> "But don't make it sound like there wasn't a whole lot of effort, expense and time involved here on the photographer's part. Also, this is a very big deal to an individual."

I'd just like to point out that neither effort, expense, nor time spent have any bearing on whether something is considered a copyrightable work. Nor does how "big of a deal" it is to the person making the claim.

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Re: Ah, but you see

Wikipedia's argument is all wrong

Either the monkey has no agency, can be considered the same as an automatic trigger, therefore copyright belongs to the photographer, or else the monkey has agency, in which case the copyright 'could' belong to the monkey... except that just as in practice, a stranger who takes my holiday snaps holds copyright of the picture legally but to all intents and purposes has granted me a license to use that pic, so it's the same with the monkey who by simply taking the snap and going on its way has conferred an implied license to the photographer.

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