back to article Petty PETA rapped by judges over monkey selfie copyright stunt

A US appeals court has upheld a lower court's decision that a monkey can't own copyright. British photographer David Slater says he has been ruined by the unauthorized spread of a wildlife photo taken using his camera equipment. The picture in question was snapped when the shutter was activated by a seven-year-old macaque in …

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Next monkey sues PETA

For unfairly giving it that name and so causing it to be a victim of fascist imperialist oppression by PETA

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MJI
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Re: Next monkey sues PETA

But the monkey is called Ella

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Go

So I guess next to be fielding a sueball will be Jimmy Wales and Wikipedia, and they'll get extra punitive marks for willing infringement?

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No because they made a settlement before the judge made this verdict. What happened is every time PETA lost they appealed . Fucknuts (AKA PETA) had more money then him so he settled and both asked for the suit to be dismissed. The judge said no for two reasons. One they already started deliberation two they said there was an interest in making a legal finding that animals do not have rights. the reason for this is peta has brought similar law suits and when it looked like it they were going to lose the dropped the suit. The judge felt like this was gaming the system. For now on the west coast PETA will have to appeal to the supreme court or except in the 9th district they can no longer bring these kinds of law suits

Claptrap314

What makes you think the 9th does not routinely hand out sane judgements ?

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@Kain preacher: you obviously haven't read the opinion (or the concurrence).

The reason why the judges (there were three of them) refused to drop the suit is that the PETA claimed to be representing the monkey, but the agreement asking for the appeal to be dismissed did not involve or mention the monkey. So the court hoist PETA on its own petard: if monkeys have the right to sue, then surely they have the right to not have their suits dismissed by some rando organization that (when not killing animals -- https://www.huffingtonpost.com/2015/02/05/pets-shelter-euthanization-rate_n_6612490.html) claims to have the rights of monkeys at heart.

This is business as usual for courts: if the question is X, they have to proceed in a fashion consistent with any answer to X, because otherwise they aren't examining the controversy,

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My understanding is that in the early days, Slater was claiming that the photo WAS the work of the monkey, as a means to drum up interest in the work (and himself). His tune suddenly changed when various folks took him up on his rhetoric.

That said, it's nice to get a mostly sane ruling out of the ninth.

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@Claptrap314 (an apt name) Most rulings out of the ninth district are entirely sane. You're probably parroting the thought based on the fact the 9th is the circuit that's overturned the greatest number of time, which is true but deceptive, because the 9th is the largest circuit. Working purely on numbers, the 9th is the circuit that is NOT overturned the most frequently! Working on percentages, it's not unusual for some of the circuits to be overturned 100% of the time (because only one or two decisions make it to the supreme court).

All that said, the is nothing inconsistent with the claim that the photo was the work of the monkey AND the assertion that the photographer owns the copyright. If I set up my camera and hand a trigger to the model, the model doesn't suddenly own the copyright just because it was their (not my) finger on the button, otherwise photographic assistants would be out of a job. The setup of the shot is as, or more, important than the tripping of the shutter.

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According to a 2010 study by the American bar, the 9th had the highest reversal rate of any circuit court (80%) except for the Federal Circuit, which is a specialist court, over the previous ten terms.

So, yeah. I'll continue the slightly-exaggerated snide comments so as to fit in around here.

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you are so wrong. In 2008 the 9th heard 114,199 cases. 107 were over turned by the supreme court 33 were vacated 35 were affirmed . So over the cases that went to the supreme court yes 79% was overturned but that's 107 out of 114,199. Were are talking about les than 0.001% of all cases being over turned.

6th Circuit - 87 percent;

11th Circuit - 85 percent;

9th Circuit - 79 percent;

3rd Circuit - 78 percent;

2nd Circuit and Federal Circuit - 68 percent;

8th Circuit - 67 percent;

5th Circuit - 66 percent;

7th Circuit - 48 percent;

DC Circuit - 45 percent;

1st Circuit and 4th Circuit - 43 percent;

10th Circuit - 42 percent.

Still wrong

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His tune suddenly changed when various folks took him up on his rhetoric

And proved that, strictly speaking, he doesn't own copyright either..

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Jimmy Wales and PETA are so full of it.

And if the monkey would have been the copyright holder of the photo, who would have collected the royalties - PETA?

They are as shitty and corrupt as everyone else..

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What legal agreement did the monkey sign to allow PETA power of attorney to act on its behalf?

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What legal agreement did the monkey sign to allow PETA power of attorney to act on its behalf?

It flung feces at the lawyers - which in America is considered reasonable behavior toward an attorney

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FAIL

> What legal agreement did the monkey sign to allow PETA power of attorney to act on its behalf?

That isn't necessary in the case of an entity that is not competent to make such a decision. E.g. animals, children, mentally disabled.

In those circumstances the court's can assign or allow welfare groups to act on behalf of the entities.

Taking your requirement that the monkey would have to sign such an agreement would mean groups like the RSPCA or other animal welfare groups - or the government itself - couldn't sue people or business for mistreatment of animals.

The same with respect to children or mentally disabled, the government wouldn't be able to take action on their behalf if we follow your argument.

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"groups like the RSPCA or other animal welfare groups - or the government itself - couldn't sue people or business for mistreatment of animals."

Mistreatment of animals is a crime, so nobody should be suing anyone over it.

You could argue that animal groups should be able to recoup treatment costs but that would be the group itself bringing the claim not the animal.

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This is not a matter of mistreatment of an animal. It's a matter of claiming that the animal has legal intellectual property rights as if it was a human and trying to enforce those. PETA decided to use the animal to push its own political agenda, it had nothing to do with the welfare of that animal. They saw an opportunity to shit-stir at the expense of an innocent person and they leapt on that opportunity so they could brag how wonderful and caring they are.

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It flung feces at the lawyers...

It's calling "filing a motion".

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Re: It flung feces at the lawyers...

And ironically then won the turner Prize

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Pint

Re: It flung feces at the lawyers...

It's calling "filing flinging a motion".

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Devil

People Eating Tasty Animals

is what PETA _should_ be.

Mmmm... BEEF!

Penn & Teller once exposed how PETA owned a HUGE walk-in freezer. Its purpose? "Euthanizing" animals! OK one site suggests it's just for storage, rather than for freezing animals to death:

http://911animalabuse.org/Peta-News.php

PETA: where hypocrisy goes to an EXTRA level!

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(semi)automatic photos

So, when a thief trips a motion-detector and as a result is recorded in the act, do they have copyright in the resulting image/video? Can they withhold permission for it to be shown as evidence against them?

Asking because

http://loweringthebar.net/2017/07/smashing-cameras-no-privacy.html

discusses a judge (sanely) dismissing the argument that smashing the surveillance cameras you know about does not give you a "reasonable expectation of privacy" with regard to the ones you missed.

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People Eating Tasty Animals

I would pay extra for products that are tested on PETA members.

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Anonymous Coward

We are all monkeys anyway. Some throw poo. It's the way of life.

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We're not monkeys, we're apes. I know a certain librarian who would love to discuss the difference further if you need more information.

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Anonymous Coward

Ooooooook

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Vootie!

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"Essentially, that means the picture belongs to Slater, and not the macaque"

Why's that then? I didn't see any assignment of copyright to Slater, just an order saying the animal couldn't sue to claim that it held the copyright.

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(Written by Reg staff) Silver badge

"Why's that then?"

Because he is the sole owner of the snap. There is no claim the monkey can make. By ruling that the monkey didn't take it, you'll have to go to the photographer to license the rights.

C.

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re: copyright

"Why's that then? I didn't see any assignment of copyright to Slater, just an order saying the animal couldn't sue to claim that it held the copyright."

If, as Slater originally claimed, the monkey randomly wandered up and snapped a bunch if pictures including the famous the selfie, with this ruling there simply is no copyright. If that is true, when Slater made the picture public, it became "public domain" and anyone can freely use it. Of course Slater now claims he intentionally set up the shot, which confuses things a bit. If Slater wants to keep control of the picture, he probably has more legal fights ahead to see if a court recognizes his copyright claim.

BTW, contrary to another commentard's claim, the general rule in the US is that the person who pushes the camera shutter button does have copyright (look it up). If a photographer sets up a shot but has someone else push the camera button, at best that photographer can claim joint copyright with the button-pusher. The rule he is conflating is "work for hire", which usually overrides that intellectual property ownership rule and generally gives employers ownership of things like copyrights and inventions created by employees & contractors. But to be safe most serious professional photographers are careful to also have contracts that clearly spell out who gets the copyright - just like most R&D tech companies redundantly have developers sign specific, 'your employer owns your inventions' contracts.

Here is a slightly entertaining take on the subject (from 2014): https://www.theatlantic.com/politics/archive/2014/03/paging-bradley-coopers-lawyers-you-might-own-ellens-famous-oscar-selfie/358758/

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Re: "Why's that then?"

Re: "Why's that then?"

'Possession is nine tenths of the law' doesn't really apply to copyright. Just because the monkey cannot make a copyright claim, it doesn't follow that the copyright 'falls back' to Slater. There's no 'Well, darnit, SOMEBODY has to own the copyright ...'

Or at least, I assume that's what the Wikipedia Foundation would claim, and it's a defensible - but very tricky to prove - position :)

If Slater does go on to prove he did everything creatively necessary, and all the monkey did was press the button, then frankly the photo isn't really worth all that much. The sole 'selling point' of the photo was really that 'the monkey took it' - if Slater goes on to prove that wasn't the case he's devalued it quite a lot.

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Mushroom

Did the monkey ask a lawyer to do this?

PETA - patronising animals.

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Re: Did the monkey ask a lawyer to do this?

I wonder how much damage PETA have done to animal welfare by giving it a bad name?

Don't give money to PETA, give it to a local charity that might use it for actually helping animals, rather than spending it on 'look at me' stunts.

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Anonymous Coward

PETA and Wikipedia

CULTS

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PETA, the same guys that employed Rodney Coronado.

It's funny how they have the word ethical in their name.

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No Slater did not intentionally set it up.

From the article:

> In this case, Slater trekked out into the jungle and carefully set up the equipment at the right spot, leaving it to the curious macaque to peer into the lens and press a button.

This is incorrect.

Slater originally stated - on the record - that he left his equipment lying around momentarily unattended when he was distracted by some other task (eating or something, I forget the details) and the monkey came along and took the photo. There was no 'setup' or placement or intention for the equipment to be used by passing animals.

It was only later when there were disputes over the copyright that he changed his story to claim to have deliberately set up the circumstances to encourage the taking of the photograph by the monkey. However, this didn't stand up to scrutiny because if he had of deliberately set up the circumstances then he would have been granted the copyright as there is precedent for this - other nature photographers/videographers who set up cameras with the specific intent of being activated by wildlife (for example timer-delayed or motion-detecting) are granted copyright in those works.

However, the copyright office rejected the copyright on this basis (that he had not planned this setup).

Then the theory was floated that the monkey owned the copyright and therefore its 'guardians' were entitled to control it. And it's this theory, that the monkey owns the copyright, that has been rejected in the circuit ruling.

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(Written by Reg staff)

Re: No Slater did not intentionally set it up.

Very little of that is correct. The US Copyright Office clarified that animals can't own copyright. It didn't need to go any further. This was stated in the third Compendium of US Copyright Office Practices which was being updated at the time.

"There was no 'setup' or placement or intention for the equipment to be used by passing animals"

The fact that Slater had gone to Indonesia for the purpose of taking photos of monkeys, and a photo was taken using his equipment laid out for the purpose of er, taking photos, is quite sufficient. Most TV wildlife footage falls into this category: it is activated by the non-human subject. Victory for TechDirt/Wikimedia/PETA would have resulted in the BBC and others losing huge amounts of material. They were seriously worried at the time.

Let me know when the macaques have designed and built their own camera - then you may have an argument.

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Re: No Slater did not intentionally set it up.

> The fact that Slater had gone to Indonesia for the purpose of taking photos of monkeys, and a photo was taken using his equipment laid out for the purpose of er, taking photos, is quite sufficient.

I disagree here.

There has to be a creative step to claim copyright (at least under US law). There has to be a creative step by the claimer of copyright.

A camera dropping out of your pocket while entering a car on the way to the Egyptian cat tombs that you'd travelled to photograph, falling in the street, and a cat bumping it to take a photo are not sufficient.

There has to be the step of deliberately setting that up - lots of cats walk past this spot, let's place a camera here and see if one of them will set it off.

If Slater could win legal cases supporting his copyright, he would be filing - and winning - them. But he has unsuccessfully pressed his claims for copyright, and PETA have unsuccessfully pushed for claims of the monkeys copyright.

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Re: No Slater did not intentionally set it up.

Further to the above post:

From Why The Monkey Self-Portraits Are Likely In The Public Domain

US 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

and

Under US law (we'll deal with elsewhere soon), you have to have made the creative contributions (the copyrightable aspects) to the image to have it qualify for any copyright protection (and then, it's only the creative aspects that get the copyright). Thus, you could argue that if the photographer had set up the camera, framed the shot, and simply let the monkey click the shutter, perhaps there is some copyright there (though, even then it would likely be limited to some of the framing, and not much else). But David Slater has already admitted that the monkeys found a camera he had left out by accident and that he did not have anything to do with setting up the shot. He's stated that the monkeys were playing with the shiny objects and when one pushed the shutter, the noise interested them and they kept it up. It would be difficult to argue he made any sort of creative contribution here to warrant copyright.

and also

Monkey See, Monkey Do, Monkey get Copyright, too?

However, irrespective of all the arguments around whether Slater is entitled to the copyright, my original point stands that the statement in the article is not what happened:

> Slater trekked out into the jungle and carefully set up the equipment at the right spot,

Slater in his initial statements about what happened said he accidentally left the camera lying around, the fact the camera was even out, let alone where it was, was an accident, there was nothing 'careful' about that setup.

It was only in later statements, after people like Jim Wales from Wikipedia said it was public domain did he change his story to having set it up.

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Re: No Slater did not intentionally set it up.

How about set up this way then?

Monkeys can be unpredictable, they can utterly dislike some people from subtle queues in body language, I have had them run past me photographing them and attack other people. They can also do a remarkable amount of damage for their size and often one in all in with a troop.

It takes a while to get close to Monkeys in a lot of cases, depending on how used to people they are. Patience, an awareness of them and yourself around them. Traveling to Indonesia and getting to be comfortable with monkeys, and all the logistics and work that entails could count plenty as set up for me, as the above post said it's basically what things like the beeb do with their camera traps.

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Re: No Slater did not intentionally set it up.

Cameras don't set themselves up you know. Are you suggesting the monkey set the Aperture and shutter, focused it and ensured the ISO was appropriate? ;)

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Re: No Slater did not intentionally set it up.

Office practice 503.03 is moot. See the latest compendium.

Feel free to pour through all 1182 pages but here are a few pointers

313.2 Works That Lack Human Authorship

503 Identifying the Original Authorship That the Applicant Intends to Register

Carry on.

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Re: No Slater did not intentionally set it up.

If a human did the same thing as the ape, then the one pushing the button would own the copyright and not the one owning the equipment.

The ONLY case where the owner of the equipment would own the copyright is when he also owns the animal.

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MJI
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Next time you see a please donate

On Wikipedia.

Remember the Monkey picture and buy a copy

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Re: Next time you see a please donate

Or remember the battle Wikipedia has to fight every day against attempts to push the boundaries of copyright beyond what statute says (and, when that fails, to extend the statute itself to steal content belonging to the public) and donate to Wikipedia.

I hope David Slater is very successful in selling his other pictures: I am sure the publicity has been very good for him.

However, that wish has no effect on the purely legal question of whether there is any copyright at all in the monkey selfie. I am not a copyright lawyer so my opinion is worthless but I look forward to this being judged in a court sometime. Although my suspicion is that David Slater will come under a lot of pressure from major wildlife photographers not to let any such case get to court.

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MJI
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Perhaps the picked up camera

was just a story to gain more publicity.

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PETA should sue the monkey

Attention whoring is their job

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PETA is an extremist organization. If it had its way, all humans would be vegan and animals would not live in captivity.

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MJI
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Captivity - stupid

There is an animal in our house which loves it there, it is fed, looked after, played with, taken on walks.

If we evicted it, it would come straight home again.

However it would not survive in the wild as it needs regular grooming, I cannot see our dog learning to trim her own fur.

Dogs, a human created species which loves living on our homes.

House cats, a small carnivore which has been bred for living with humans.

Two species who live with us as members of our families, not captives. So fuck off PETA!

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TRT
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And on another news item...

there were questions asked about AIs having legal status. Also applies to elephant paintings.

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