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, …

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    1. Joefish
      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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    1. DrXym Silver badge

      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.

      1. heyrick Silver badge

        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?

        1. Anonymous Coward
          Anonymous Coward

          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.

          1. Ken Hagan Gold badge

            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?

            1. James Micallef Silver badge

              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

            2. Anonymous Coward
              Anonymous Coward

              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.

              1. Anonymous Coward
                Anonymous Coward

                Re: Good article.

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

                Sounds fair enough, otherwise those photos the waitress took of me and wife at dinner on my phone are not mine any more.

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          3. Alasdair Russell
            Thumb Down

            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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        2. Levente Szileszky

          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.

          1. Not That Andrew

            Re: Good article.

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

          2. Andrew Orlowski (Written by Reg staff)

            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.

            1. Anonymous Coward
              Anonymous Coward

              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.

      2. Mark 85 Silver badge

        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.

        1. Ben Norris

          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.

          1. h4rm0ny

            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?

            1. James Micallef Silver badge

              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"

    2. Oninoshiko

      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.

      1. JDX Gold badge

        Re: Good article.

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

        1. Anonymous Coward
          Anonymous Coward

          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.

          1. La2rwhy

            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.

        2. Joefish
          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?

          1. John Brown (no body) Silver badge

            Re: Good article.

            Is that based on the primate facie faeces evidence?

            FTFY

          2. John Bailey

            Re: Good article.

            "Is that based on the primate facie evidence?"

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

            1. Robert Baker
              Joke

              Re: Good article.

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

  3. Isendel Steel
    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...

  4. markw:

    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?

    1. Anonymous Coward
      FAIL

      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

      1. h4rm0ny

        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!

        1. Tom 35 Silver badge

          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.

          1. h4rm0ny

            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.

            1. Tom 35 Silver badge

              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.

              1. h4rm0ny

                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.

            2. James Micallef Silver badge

              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.

    2. Peter Mount
      WTF?

      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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      1. Neil Barnes Silver badge

        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.

        1. Gordon 11

          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.

          1. Bronek Kozicki Silver badge

            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.

          2. Anonymous Coward
            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"?

            1. Tom 35 Silver badge

              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?

              1. Martin-73 Silver badge

                Re: Who takes the picture?

                If yes who is the monkey's agent?

                Jimmy Wales?

        2. fishman

          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.

          1. Anonymous Coward
            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

          2. h4rm0ny

            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.

            1. Anonymous Coward
              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.

      2. Joefish
        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...

    4. Tom 35 Silver badge

      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.

  5. Anonymous Coward
    Anonymous Coward

    In some parts of the music industry, the owner of the equipment used in a production has part ownership of the end result. Wonder if its similar here?

    1. Michael Strorm

      "In some parts of the music industry, the owner of the equipment used in a production has part ownership of the end result. Wonder if its similar here?"

      Yes, but is that ownership inherent in the relevant part of the law itself, or merely de facto standard contractual practice in the music industry?

    2. Anonymous Coward
      Anonymous Coward

      In some parts of the music industry, the owner of the equipment used in a production has part ownership of the end result. Wonder if its similar here?

      Never heard of that, and I've had a record contract. Are you getting confused with "points", where sometimes a producer will take a percentage of royalties rather than a fixed payment for working on a recording?

      1. Anonymous Coward
        Anonymous Coward

        "Are you getting confused with "points", where sometimes a producer will take a percentage of royalties rather than a fixed payment for working on a recording?"

        Nope. Maybe it's an Australian music system thing. :)

  6. Joefish
    Holmes

    And this is why we call them 'Freetards'.

    The Wikipedia argument is based on the idiotic assumption that you can confer the 'Rights of the Artist' on the monkey and nominate it as the photographer (and thus robbing Slater of his rights), whilst at the same time asserting that the law does not allow the monkey property rights over the resultant image.

    Since the monkey has no rights whatsoever under the law, Slater allowing the monkeys to use his camera on themselves is the only 'art' here; he is the artist, and he thus owns all rights over the works produced.

    It's no different to the BBC Natural History Unit owning the footage they shot when they trained elephants to carry their cameras. I hope he gets a lot more than just loss of earnings when he sues their idiotic arses.

    1. Inventor of the Marmite Laser Silver badge

      Re: And this is why we call them 'Freetards'.

      Slater "owns" the copyright, in exactly the same way as Nikon, or whoever it was made the camera does, or his mum for giving him the money to buy it. Slater doesn't "Own" the photo, because he doesn't and the monkey doesn't, because it can't (at least in the eyes of the law).

      1. Joefish
        Paris Hilton

        Re: Slater doesn't "Own" the photo, because he doesn't and the monkey doesn't

        No, you're just making the same argument - that you can somehow say the monkey is legally responsible for taking the image and thus Slater has surrendered his rights to it, whilst at the same time asserting that the monkey has no rights. That's nonsense.

        1. Dan 55 Silver badge
          Pirate

          Re: Slater doesn't "Own" the photo, because he doesn't and the monkey doesn't

          More to the point, who made Wikimedia judge and jury and said they could clarify a possibly obscure part of the law (or possibly not, because as mentioned above David Attenborough's programs have been running for decades)? I'm pretty sure if it goes to court then a judge would have something to say about that.

        2. VinceH Silver badge

          Re: Slater doesn't "Own" the photo, because he doesn't and the monkey doesn't

          Indeed.

          Any claims that the monkey is legally responsible - that's the cake.

          Then claiming the monkey has no rights and the picture is therefore free - that's eating it, too.

        3. Raumkraut

          Re: Slater doesn't "Own" the photo, because he doesn't and the monkey doesn't

          > that you can somehow say the monkey is legally responsible for taking the image and thus Slater has surrendered his rights to it, whilst at the same time asserting that the monkey has no rights.

          No, I believe that the argument is that Slater never had any rights to the image in the first place, because he was not the creator of the work.

          A painting tutor may buy, transport, and set up the easels, canvas, paints, and brushes, but without an previously agreed contract, they have no rights to the works their students create. Should it be any different if some of the "students" happen to be apes, elephants, or robots?

          1. Joefish
            Paris Hilton

            Re: Slater doesn't "Own" the photo, because he doesn't and the monkey doesn't

            Yes it's different, because human art students have rights themselves protected by the law; their tutor can't claim their works as his own, unless they specifically sign them over. Animals and machines do not have such rights. If he set up a clockwork whirly paint sprayer in front of the canvas, he would be considered the artist. If he let a spider crawl through paint and walk across the canvas, he would also own the result. And if he put a brush in the hand of a monkey to see what happens, the end result would also be his. You cannot simply claim no-one is responsible for the result just because you feel like it. There is no legal grounds for denying him the rights to the artistry that resulted from a situation he was responsible for. Only another involved legal party can do that, and there are none.

          2. Radbruch1929

            Re: Slater doesn't "Own" the photo, because he doesn't and the monkey doesn't

            > No, I believe that the argument is that Slater never had any rights to the image in the first place, because he was not the creator of the work.

            Exactly. The EC copyright directive (2001/29/EG) does not define who the creator is. But in paragraphs 9 and 10 of the preamble, it says the the protection is granted in order to allow authors or performers to continue their creative and artistic work (not quoted verbatim). I read this to be a requirement that the creation is the result of a wilful and intentional act (or ommission) to create a result.

            Now from the telegraph article, I understand that while the animal pressed the button, Mr. Slater did not chase it away and left it to proceed for quite some time. To me, this seems to be an intentional ommission that led to a result (the photo). From my point of view, this satifies the requirement but this is strictly a personal opinion and it is debatable where to set the threshold.

            1. NumptyScrub

              Re: Slater doesn't "Own" the photo, because he doesn't and the monkey doesn't

              quote: "Exactly. The EC copyright directive (2001/29/EG) does not define who the creator is. But in paragraphs 9 and 10 of the preamble, it says the the protection is granted in order to allow authors or performers to continue their creative and artistic work (not quoted verbatim). I read this to be a requirement that the creation is the result of a wilful and intentional act (or ommission) to create a result."

              And since the simian cannot be the author or performer (it is not recognised legally) then the only recognised actor in the creation of the work is Mr. Slater. Who, according to the BBC article, actually expended quite a bit of specific effort to get the picture:

              "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." (emphasis mine)

              The only legally recognised entity that put specific work in to take that photograph is Mr. Slater, who gets copyright automatically attributed under EU/UK copyright legislation.

              All the talk about the monkey is a red herring ;)

              1. Radbruch1929

                Re: Slater doesn't "Own" the photo, because he doesn't and the monkey doesn't

                We violently agree. The question is whether Mr. Slater created the photograph and the animal's legal status plays no part in the answer.

                From the BBC article (thank you for the link), apparently it was not only an ommission to chase the simian away but he set in motion the develoment that led to the photo, thus he acted with intent. My feeling is it is going to be hard to argue that Mr. Slater did not create the photo in this context.

    2. Alsee
      Happy

      Re: And this is why we call them 'Freetards'.

      Joefish: You might want to avoid calling people 'idiotic" and 'freetards'. It reflects rather poorly you when it turns out you were wrong.

      P.S. I hereby revoke your right to use the "No Shit, Sherlock" icon. lolz.

  7. Smiles
    Facepalm

    Doesn't intent have any sway?

    My understanding of copyright is that simply judging ownership based on the person who pressed the shutter is not accepted, for example what happens if I ask a stranger to take a picture of me with my camera? Does he/she own the image?

    On the whole I agree with the idea of sharing information, but there is a big difference between sharing and taking. Sharing is when the owner (and let's face it, images, songs, programs etc DO have owners) decides to let people use it. Sadly a lot of the crowd shouting about freedom of information are arguing in order to justify the volume of films/music they download, and while I'm very much against the business model used by the relevant industries, it's still theft. I do it as much as anyone else, but I don't try to pretend I'm some kind of hero for doing it.

    1. Yet Another Anonymous coward Silver badge

      Re: Doesn't intent have any sway?

      If it was David Bailey passing by and he posed you, chose the camera angle, chose the exposure and framed the shot - then took your picture with your camera then he might have done more to create the copyright than just press the button

    2. Anonymous Coward
      Anonymous Coward

      Re: Doesn't intent have any sway?

      > On the whole I agree with the idea of sharing information, but there is a big difference between sharing and taking.

      What is under debate here is not anything to do with sharing or taking. That is a purely moral argument.

      What is under debate is whether or not the photograph is copyrighted by the photographer or if it slips into the public domain because of some grey area in the law.

      If the photograph is in the public domain, then moral judgement just doesn't come into it. Anyone can do whatever they want with it for whatever purpose since nobody has a copyright privilege over it. It's as simple as that.

      The other arguments that I have seen prior regarding snaps taken by a passer-by do in fact suggest that there is some scope of ambiguity here. Since copyright assignment almost never enters into those kinds of practical situations then they're never tested in law. That doesn't mean that those situations don't fit into that same grey area though.

  8. Anonymous Coward
    Anonymous Coward

    OOK!

    OOK!

    1. h4rm0ny
      Alert

      Re: OOK!

      Please tell me that you didn't just imply the Librarian is a monkey!

      :(

      1. Alien8n Silver badge
        Alien

        Re: OOK!

        Did anyone get the number of that donkey cart?

  9. Destroy All Monsters Silver badge
    Thumb Down

    Does anyone care?

    Copyright still at mickey-mouse levels instead of 10 years after publication?

    Yeah fuck that.

    1. h4rm0ny

      Re: Does anyone care?

      Yeah, actually quite a lot of people do. And as someone who has several times donated to Wikipedia over the years (not much, about £100 in total, I'd guess), I certainly wont be doing so again for some time after they attempt to rip off some photographer based on a supposed loophole.

  10. PAF

    Monkey Business

    That's what it is!

    1. Joefish
      Mushroom

      Re: Monkey Business

      Could be worse - at least so far no-one's noticed the lack of tails and tried to tell us all they're apes...

  11. namke

    Photographer's Assistants...

    This is common practice in the world of the professional photographer and their assistants. The pro will choose the location, lens, point of interest etc. but it may be the assistant who takes the photograph. Copyright is still retained by the pro (this article highlights a shot where the assistant got a joint credit - and this was noteworthy at the time)

    Not that I would in any way want to liken photographic assistants to monkeys of course...

  12. Jagged

    If I give hand you my camera and you take a picture, unless we have some prior arrangement, that picture is mine. Whether you are a monkey or not.

    1. Anonymous Coward
      Anonymous Coward

      As I understand it, in some jurisdictions some pictures aren't copyrighted at all as there is insufficient creative input. For example, if I photocopy an A4 page using a normal photocopier in the normal way, do I own copyright in the photocopy? Probably not. What if I photograph a poster on the wall, where all I did was hold the camera so that the opposite sides of the poster were roughly parallel in the image?

      And here's an interesting case: a screenshot from a webcam chat. I saw such a picture in a magazine and the caption implied that the picture was made by the person who took the screenshot, but how much creative input is there in taking a screenshot? One might argue that the person at the other end, who positioned both the camera and themselves, had a far greater creative input and ought therefore to be the copyright owner.

      Anyone who thinks the answers to these questions are obvious is probably a bit stupid.

      1. Ken Hagan Gold badge

        "For example, if I photocopy an A4 page using a normal photocopier in the normal way, do I own copyright in the photocopy? Probably not."

        Probably. You could argue that it was a derivative work and that others should not be allowed to copy your copy without your permission. They'd have to go back to the original. However, none of this sophistry would exempt them and you from obtaining the permission of the original creator if the page you copied was itself a copyrighted work.

    2. KjetilS

      You are wrong.

      Unless there is a prior agreement, the copyright belongs to the person who took the photo.

  13. Evil Graham

    Whatever the legal arguments

    The monkey selfie on the front page of today's Independent was a beautiful thing which brightened my day.

    For that, Mr Slater surely has earned some reward.

    1. Sir Runcible Spoon Silver badge
      Holmes

      Re: Whatever the legal arguments

      Would Mr Slater be getting all this publicity for a picture of a monkey if

      a) he had taken the picture himself or

      b) Wikipedia hadn't decided to make a point about copyright?

      It sounds like he is the one who wants his cake and to eat it too.

      He wants the revenue from the shot, but it only became valuable due to the fact the monkey actually took it and might actually be the accredited photographer?

      Has anyone asked the monkey what he thinks about the whole thing?

      I would hazard a guess that his reply would something along the lines of

      "All those years of evolution and _this_ is what your civilisation has come to? Move aside, it's our turn."

      1. NumptyScrub

        Re: Whatever the legal arguments

        As has been mentioned by several people, the Macaque in question is not a legally recognised entity, therefore it cannot be recognised as the creator of the work. As was also mentioned by several people (and shamelessly stolen by me for repeating), the BBC article specifically mentions that Mr. Slater deliberately and with significant effort set the shot up.

        "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."

        He deliberately set up the camera, deliberately framed the shot, deliberately handed the Macaque the remote shutter release button, and then waited. As the only legally recognised entity involved in the creation of that photograph, he has taken it himself.

        Whether you feel that intelligent species that aren't homo sapiens should be legally recognised is a completely different issue, but as the law stands it is copyrightly patently obvious to me who owns the copyright in that specific photograph.

  14. Kimo

    Slater supplied the equipment and set the conditions where the monkey took the picture. Sounds like Work for Hire to me.

    1. Joefish
      Joke

      Well, he got a monkey and was paid peanuts...

    2. isochronous

      And what if you left a camera lying around and someone picked it up and took a picture with it without your knowledge or consent? In that case, you might own the photograph, but you do not have a valid copyright claim to it.

  15. Chris Hawkins
    Linux

    Hold on! What about the legal rights of Simians??

    The above discourse got me ruminating on something I read a few years ago.

    Now thanks to OOOkgle! and Wikipedia, I was able to find it...

    http://en.wikipedia.org/wiki/Great_ape_personhood

    Seems like Mr. Slater should be careful about pursuing any legal action in courts of the Balearic Islands (Spain), Germany or New Zealand where certain rights have legally been accorded to certain simians.

    New Zealand is an interesting case in point, especially as the following quote seems allegedly to imply that certain apes are even protected from having to become teachers....!!!!!

    "New Zealand granted strong protections to five great ape species in 1999. Their use is now forbidden in research, testing, or teaching. Some argue that New Zealand's protections amount to a form of weak legal rights. [8]"

    Given that Germany is in the EU and given the recent EU Court privacy case, I reckon the aforementioned macaque should request removal of all references to him in search engines and the Interwebs unless he gets a cut of Mr. Slater's income from this mugshot!!!

    1. Joefish
      Paris Hilton

      Re: Hold on! What about the legal rights of Simians??

      "Some argue that New Zealand's protections amount to a form of weak legal rights".

      Rational human beings with even the vaguest understanding of the law, on the other hand...

      Those are prohibitions that apply to humans in contact with the animals, not rights that are conferred on the animals as individuals. What's next, healthcare and free bus passes for Grade II listed buildings? Or maybe housing benefit would be more appropriate...

      1. Anonymous Coward
        Anonymous Coward

        Re: Hold on! What about the legal rights of Simians??

        > Those are prohibitions that apply to humans in contact with the animals, not rights that are conferred on the animals as individuals. What's next, healthcare and free bus passes for Grade II listed buildings? Or maybe housing benefit would be more appropriate...

        Most rights conferred by law on humans are actually prohibitions set against others. Laws relating to theft, assault are not privileges afforded to people, but prohibitions set against others.

        A "right to a private life" is actually a prohibition against others to interfere with your privacy.

        Since the law has little enforcement provision other than to punish others in this area, I wouldn't be so contrite about what is and isn't a right.

  16. hammarbtyp Silver badge

    Technically it is the monkeys

    Despite the tone of the article(I hadn't realised Gavin Clarke was Andrew Orlowski's new pseudonym), I think technically Wikipedia are legally correct.

    The question of whether the monkey can be considered legally as can individual, obscures the fact that it is the person who presses the button who is considered the owner of copyright , not the owner of the equipment.

    The article tries to make out that this a power grab by freetards, but to me it just shows the holes and inconsistencies that the current copyright legislation ties itself up into. The more the law tries to defend copyright the more out of touch with reality it looks.

    1. Joefish
      Megaphone

      Re: Technically it is the monkeys

      "the fact that it is the person who presses the button who is considered the owner of copyright , not the owner of the equipment"

      If I may put this in terms you might understand:

      [CITATION NEEDED]

      1. DropBear Silver badge
        FAIL

        Re: Technically it is the monkeys

        [CITATION NEEDED]

        Citations are only ever any use if one is capable of reading them. In this case, the article linked in one of the posts above. Oh, and even attempting to claim that mere ownership of the means implies automatic copyright in whatever they produce without one's significant creative involvement is simply so ludicrous it beggars belief - don't bother...

        1. NumptyScrub

          Re: Technically it is the monkeys

          quote: "Oh, and even attempting to claim that mere ownership of the means implies automatic copyright in whatever they produce without one's significant creative involvement is simply so ludicrous it beggars belief - don't bother..." (emphasis mine)

          For the 5th? time this thread, quoted from Mr. Slater himself:

          "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."

          Sounds like significant creative involvement to me.

          quote: "There were two parties involved in producing this photograph:

          1) The photographer, who created the situation, set up and adjusted the camera and allowed the ape to play with it, in full knowledge of the likely outcome.

          2) The ape, who pressed the button without any concept of what it was doing other than copying the previously observed physical actions of the photographer."

          As has also been said 5? times already this thread, the Macaque is not legally recognised as a party, the same way a snail would not be legally recognised as a party. Thus there was one party involved in producing this photograph, namely Mr. Slater. In cases where only one party is involved in creating a work, is that party not automatically accredited with copyright in that work?

          I do not think Wikipedia's argument holds any legal water, at least not under UK or EU copyright legislation, and I suspect not under US legislation either (they tend to take quite a dim view of IP infringement over there as well).

          Note: both these arguments are not mine, I have shamelessly ripped off people far more erudite than I. I am simply (re)presenting them in the hopes of elucidating others.

    2. David Webb

      Re: Technically it is the monkeys

      No, I think the articles recently show just how much Wikimedia respects copyright. Of every single request for removal due to copyright issues that the WMF has received they have complied with a grand total of 0.00%

      The Wikimedia Foundation has also published its first transparency report - following a similar practice by Google, Twitter and others.

      It reveals that the organisation received 304 general content removal requests between July 2012 and June 2014, none of which it complied with.

      This money shot is just another example of them not respecting copyright holders and will claim anything is in the public domain if it suits them to, ignoring that they will say "yeah, it's copyright but, well, under US law FU! BWAHAHAHAHA".

    3. photobod

      Re: Technically it is the monkeys

      It's a gross oversimplification to say that copyright belongs to the person to pressed the shutter button. For copyright to exist at all, the photograph must be a creative work, hence it must involve a creative step. The party who makes the creative step is the author.

      There were two parties involved in producing this photograph:

      1) The photographer, who created the situation, set up and adjusted the camera and allowed the ape to play with it, in full knowledge of the likely outcome.

      2) The ape, who pressed the button without any concept of what it was doing other than copying the previously observed physical actions of the photographer.

      So, one of those parties thought about and planned the end result, while the just copied the pressing of a button. Which do you deduce was involved in a creative step and hence is the creator of the work?

  17. JeffyPoooh Silver badge
    Pint

    The debate reveals that Copyrights are unnatural.

    The debate has revealed a lot of unnatural 'divide by zero' type arguments.

    Here's one solution in this case. The monkey took the picture, but the owner's camera actually created the JPEG. So Canon owns the copyright to all jpeg pictures taken by Canon hardware.

    My opinion is that photographers get too much respect for 17ms work. Sometimes they work at it; but often they just happen to be in the right place at the right time and then they push the button. Give 'em a 6 month copyright on such documentary images.

    1. h4rm0ny

      Re: The debate reveals that Copyrights are unnatural.

      >>"My opinion is that photographers get too much respect for 17ms work"

      I was once paid £200 for about an hour's work. Of course there was all the study, the extensive experience in writing code, two years of familiarity gained by working with that particular piece of software that enabled me to do that hour's work. But no, surely that should all be ignored because it's the time it took to actually do that specific piece of work that matters.

      And photographers who take a photo in "17ms" of a shutter opening and closing! Why they barely deserve to be paid at all!

      1. Gazareth

        Re: The debate reveals that Copyrights are unnatural.

        17ms and all that...

        Should Rory McIlroy win the PGA this weekend he'll take home $10 million. Total time spent swinging a club during 4 rounds is < 5 minutes.

    2. h4rm0ny

      Re: The debate reveals that Copyrights are unnatural.

      >>"The debate has revealed a lot of unnatural 'divide by zero' type arguments"

      Oh great - now the Bible types are here with their arguments that something is bad because it is "unnatural".

      Hint: humanity has created a lot of artificial structures that are good for society.

      1. Robert Baker
        Joke

        Re: The debate reveals that Copyrights are unnatural.

        "Oh great - now the Bible types are here with their arguments that something is bad because it is "unnatural".

        Hint: humanity has created a lot of artificial structures that are good for society."

        Divide by cucumber error: reinstall universe and reboot.

    3. Ken Hagan Gold badge

      Re: The debate reveals that Copyrights are unnatural.

      "but often they just happen to be in the right place at the right time"

      In the case under consideration, the right place was a remote part of Borneo and the right time required a fairly prolonged stay. I'd call that fairly heavy investment, but maybe you spend months lurking in tropical rain forests as part of your day job.

  18. Anonymous Coward
    Anonymous Coward

    I'm fairly sure that the EXIF information coded into the photo by the camera would have included at least his name and probably copyright information. That, and the fact that he published the photo online and the world knew all about it would have been a fairly strong indicator that it was his.

    How about he gives a monkey some knitting needles & a ball of wool. Who owns the resulting jumper?

    Would some scrote be within their rights to nick the jumper from the washing line & take it for their own use?

    Very disingenuous.

  19. John Savard Silver badge

    Wikipedia is Wrong

    I think that Wikipedia's position is mistaken. Copyright law isn't like patent law, so just providing the camera is enough to own the copyright on an image. The macaque would have to be a human who didn't sign a work made for hire contract to shake that up. Anyways, Wikipedia can't afford to waste money on lawyers, and this is not a copyright issue of a sort that affects Internet freedom.

  20. Eclectic Man

    Editing?

    A while ago a book of Dorothy Parker's poetry was published in the UK (sorry, I don't have a citation, but bear with me). It seems that some of the poems in the book had been punctuated by someone else, who owned the copyrighyt to the puctuation. As he had not been paid for his work, the book was withdrawn.

    If Mr Slater did any editing in Photoshop, Lightroom etc. (other editing tools may be available), then he undoubtedly owns the compyright on those, irrespective of whether he can be said to have the copyright of the original image. From my own experience, taking a properly exposed image of a very dark object, such as an ape or monkey is quite tricky,

    The image on the front of today's Independent newspaper has, I suspect, been subject to some post processing (I'm sure there are readers of el Reg far better able to comment on this than I). The subject is suspiciously upright in the frame, which suggests to me that some editing has been done - an ape with the ability to take a selfie properly aligned to the vertical is doing a lot better than most Homo Sapiens.

  21. 27escape
    Stop

    So the monkey owns the copyright

    And if I record a movie with a camcorder or a concert with my phone, then I own the copyright?

    Exactly, right this is not the case.

    The copyright is with the person who created the item, or caused it to be created.

    For example, the company I work for owns the copyright for the software or documents I write. I do not. They tell me what to create on their behalf.

    1. Ken Hagan Gold badge

      Re: So the monkey owns the copyright

      "And if I record a movie with a camcorder or a concert with my phone, then I own the copyright?"

      Yes, you do. Come back after you've googled "derivative work".

      1. Anonymous Coward
        Anonymous Coward

        Re: So the monkey owns the copyright

        > Yes, you do. Come back after you've googled "derivative work".

        No, he does not own the copyright, unless a contract between him/her and the artist exists, and gives him/her explicit permission to record, and also transfers copyright. Depending on the terms of the contract, the artist may very well retain copyright, as the contract may have allowed recording, but not transferred copyright.

        Without a prior written agreement, not only he would not be creating a "derivative work", but he would be infringing on the artist's copyright and may be subject to fines.

        Recording a movie with your camcorder in a movie theatre is illegal in the USA, precisely because of Copyright Law. Recording devices are - by default - forbidden when you attend a music concert of any kind, also because of Copyright Law.

        Look on the back sleeve of any CD containing a recording of a "live" concert. The artist, or the artist's managers still retain copyright, and the copyright is explicitly stated on the CD sleeve.

        1. Anonymous Coward
          Anonymous Coward

          Re: So the monkey owns the copyright

          Recording a concert with a mobile phone might give you the copyright to that recording but you won't have the rights to use it anywhere since the music is still the copyright of the original author. In the case of pictures it gets tricky. You have the copyright to the photo but you probably have no model release form from the band. If the concert is considered a private event that's all there is to it - you can take the photo (and they can also throw you out) but you can't use it. If the event is a public event you might be allowed to use such photos for non-commercial purposes but it's a big can of worms. Live CD recordings are done by professionals through the venue sound system and the band management would have commissioned someone to do them so the copyright is fully retained. Professional looking photos are either taken by commissioned photographers or photojournalists who either pay or are allowed to take photos for advertising purposes.

          1. Alien8n Silver badge

            Re: So the monkey owns the copyright

            Been there, done that. Took some photos for a band in a local pub (just before they headlined the Bulldog Bash) and while there was no formal agreement between us we did verbally agree at the time that I wouldn't release any of the photos until after they'd seen them. Copyright was mine, but they retained some rights to use of their image. A lot more common than you might think, a lot of bands won't allow any photographers in until they sign a form basically granting the band all rights to the images. Makes you wonder why anyone nowadays even bothers doing music photography anymore...

    2. Alsee

      Re: So the monkey owns the copyright

      "And if I record a movie with a camcorder or a concert with my phone, then I own the copyright? Exactly, right this is not the case."

      Actually the legal answer is YES, you do in fact on a copyright on that recording. And if the movie-producers or concert-performers start selling copies of your recording then you can sue them into oblivion for violating your copyright. Any court in the 1st world will rule in your favor.

      Of course the fact that you own your copyright does not magically cause their copyright to stop existing. If you attempt to start selling copies then they can sue you into oblivion for violating their copyright. Any court on the 1st world will rule in their favor.

      There's copyright on the monkey photo, multiple copyrights on your camcorder vid.

      There are many common cases where multiple overlapping copyrights exist in this manner. And what it means is that NO ONE can do anything with it, unless they have permission from all applicable copyright holders. Perhaps the most common case is when you buy a CD containing songs from multiple artists. Not only is that CD subject to overlapping copyrights of each performer, the publisher probably has a copyright on the composition of those particular songs in that particular order. No one can manufacture and sell that CD without permission from everyone.

  22. msknight Silver badge
    FAIL

    I think Wikipedia is wrong

    I base this on the grounds that anyone who made a substantial contribution to an image has a portion of rights to that image. That includes lighting staff if they decided where to place the lights and balance the settings, but not if they just put them where the photographer told them where to put them and what settings to use ... a key difference and one that I believe has been argued in various courts long before now.

    Slater set up the camera, tuned the settings, etc. The monkey hitting the shutter is an utter nonsense, otherwise the camera would own the rights to any picture that was taken with an auto-shutter ... the animals would own the rights to any picture which was taken with a trip wire ... an IR sensor ...etc.

    Just putting this down to who hit the shutter is just utter stupidity IMHO, and any law which supports the owner simply as the person or entity that tripped the shutter is ... as is traditional to say ... an ass.

    1. Anonymous Coward
      Anonymous Coward

      Re: I think Wikipedia is wrong

      And so do I, but for a different reason: none who is a successful, well-liked professional respected in his field goes to work for the monkeyfest (pardon) that is WMF (Wackymedia Foundlings). Just look at the LinkedIns, when there is one, of anyone working in there. :(

  23. Anonymous Coward
    Anonymous Coward

    wikimedia commons

    From my experience, some of those editors "curating" pictures on Commons make the en.wikipedia editors look like a bunch of well-adjusted individuals.

    personally, if they think the macaque is responsible for the photo get it to release it under a commons licence....

  24. Smudger 1
    Stop

    not likely at all...

    "Give a million monkeys in a room a typewriter each and they will eventually reproduce the entire works of Shakespeare, it’s said."

    It may be said, but...

    "If there were as many monkeys as there are atoms in the observable universe typing extremely fast for trillions of times the life of the universe, the probability of the monkeys replicating even a single page of Shakespeare is unfathomably minute." -- Wikipedia

    http://en.wikipedia.org/wiki/Infinite_monkey_theorem

    1. Joefish
      Joke

      Re: not likely at all...

      I believe it has been pointed out repeatedly that the 'infinite number of monkeys sat at keyboards reproducing the works of Shakespeare' is entirely disproved by one quick glance at the internet.

    2. Spleen

      Re: not likely at all...

      The alternative formulation about "an infinite number of monkeys will eventually..." is also nonsense. An infinite number of monkeys will produce an infinite number of copies of the complete works of Shakespeare on their first go. (As well as an infinite number of copies of every other book ever written, infinite copies of every book it is possible to write, and an infinite amount of gibberish.)

  25. Zog_but_not_the_first Silver badge

    Careful now...

    Give the apes their due. We don't want them getting angry in case it winds up with the Statue of Liberty on a beach somewhere.

  26. DerekCurrie Bronze badge
    Devil

    Perfect Google Evil:

    "Here’s how Google’s director of content partnerships Tom Turvey justified the scanning: “If a work is truly orphaned, by definition it has no copyright owner to ‘opt out’ of the database.”"

    The corporation as OVERLORD. Frack that Google.

  27. DerekCurrie Bronze badge
    Go

    Courtesy Please Wikipedia

    I give money to Wikipedia. I contribute and edit at Wikipedia. Wikipedia is BRILLIANT!

    But courtesy must rule, dear beloved Wikipedia. So cut the crap and kill the monkey's selfie already. There is no point in pulling punches over the 'copyright' of third-species created content. Stop acting like a silly monkey please and just do the courteous thing. There's already tsunami waves of human on human abuse dumping on all of us every single day of our lives amidst our 'civilization'. Just be the seriously superior humane being and be kind to others when appropriate and beneficial to others.

    Mmm, you're such a good friend. I know you can do it.

    1. Anonymous Coward
      Anonymous Coward

      Re: Courtesy Please Wikipedia

      > I give money to Wikipedia.

      You should stop doing that pronto. You are feeding those drooling bastards getting a payslip from the WMF and making you and other well-intentioned contributors look like right idiots in the eyes of the public.

      Let them starve and fuck off somewhere else (civil service?), then see if you can pick up the bits and salvage your good work and that of many others.

  28. Tim Brown 1
    Holmes

    Are we sure it's a selfie???

    It doesn't look like a selfie to me - the monkey doesn't have his arm out towards the camera!

    1. Gazareth

      Re: Are we sure it's a selfie???

      No mirror in sight, eyes focussed on the lens, not taken at an acute angle, no duck face.

      Rubbish selfie.

  29. Gary Bickford

    Time for a Kickstarter to help Slater out

    Per article on BBC cited in one of the comments here, Slater says he's lost 10,000 lbs. of revenue due to this Wikipedia thing. Someone could start a Kickstarter to help him out, and encourage him to give Wikipedia rights once the campaign succeeds.

    [Dang, no monkey icon. :( ]

  30. Anonymous Coward
    Anonymous Coward

    One of my cats plays the piano ...

    ... sometimes. I.e. walks around on the keyboard. The other one never does.

    My pianist cat also appears to enjoy classical music; whenever I lisen to something, he listens too. The other one doesn't like music at all; whenever I play some music she goes in the other room to take a nap.

    This may all sound completely irrelevant and off-topic, but I don't believe it is.

    The pianist cat has been doing this for a number of years, so I can reasonably conclude that (a) he is aware of what he is doing and (b) he derives some enjoyment out of it. At a minimum, I can't attribute to accident his jumping on the piano chair, then on the keyboard, then making piano sounds.

    So, two questions:

    1. If I recorded my pianist cat while he's playing, would that recording be considered an original work, and, if so, would it be subject to copyright?

    2. If this recording is indeed an original work and is subject to copyright, who owns the copyright? I don't believe I own it, I didn't create these piano sounds, my cat did. I only recorded the sounds. Same exact thing as a recording engineer: Deutsche Grammophon's recording engineer doesn't own the copyrights to Maurizio Pollini's recording; it's Pollini and Deutsche Grammophon who own the copyrights.

    In my view, my cat's recordings - if they existed - aren't copyrightable at all. I would have a very difficult time arguing that my cat is a pianist. I can't really see how Mr. Slater can reasonably argue that the monkey who took a selfie is a photographer.

    1. h4rm0ny

      Re: One of my cats plays the piano ...

      >>"2. If this recording is indeed an original work and is subject to copyright, who owns the copyright? I don't believe I own it, I didn't create these piano sounds, my cat did."

      You do own the copyright. You set up the cat, the piano, the recording equipment, waited for it to happen, edited out the part you were actually after (even if that were just cutting away the sliences where the cat wasn't walking about), and you then promulgated the work. It's yours. By your logic of not owning copyright because you just recorded what was there, no-photographer would ever own copyright on their photo because they just photographed what was there.

  31. James 100

    "I'm fairly sure that the EXIF information coded into the photo by the camera would have included at least his name and probably copyright information. That, and the fact that he published the photo online and the world knew all about it would have been a fairly strong indicator that it was his."

    If you borrow my camera and take a picture with it, the EXIF data will say the photo belongs to me. The EXIF data will be wrong, because the camera does not know who is operating it or understand copyright law. Ownership of the camera is wholly irrelevant: even if I happen to use a stolen camera, the copyright in any photo I take belongs to me. The legal question here is quite simply: who "took" this photo, the hairy primate who pressed the button, or the (presumably less hairy) primate who adjusted the settings beforehand? The answer to that is difficult. Had the subject of the photo been human, the court would rule robustly that copyright belonged to them (or, if employed, to their employer).

    (I have a barrister friend who specialises in copyright and patent law, I wonder what her take is, and how much it would cost?)

  32. Anonymous Coward
    Anonymous Coward

    Something rotten here

    I remember the original story from 2011. When it first appeared in the Mail, the story was that the photographer had left his camera lying around, and was astonished to discover the selfie when he came back for it. Now he was present when it was taken.

    If his original story was true, then the monkey has a good claim to be the photographer (and hence the copyright). If his new story is the true account then he has a good claim to the copyright.

    Anyone know why the original story was different from his new account?

    1. h4rm0ny

      Re: Something rotten here

      >>When it first appeared in the Mail ... If his original story was true,

      It's the Mail. I'm surprised at the time they didn't describe "selfies" as a plague on our youth that was causing them to sext each other, immigration to rise to have killed Diana.

  33. DougS Silver badge

    Who owns the copyright if you borrow my phone and take a selfie?

    Who owns it if you take my phone I left laying out while I went to the bathroom and took it without my knowledge? Who owns it if you break into my house at night and take a selfie of yourself robbing me, but I later get back the phone?

    I think the answer to these questions matters more than whether a monkey can hold copyright, since the monkey could only take a selfie with the camera the photographer owned.

    1. Ian Tresman

      Re: Who owns the copyright if you borrow my phone and take a selfie?

      Copyright has nothing to do with who owns the equipment.

  34. Anonymous Coward
    Anonymous Coward

    Shakespeare

    Isn't this the same macaque that helped write Shakespeare (with 999,999 of his friends)?

  35. Anonymous Coward
    Anonymous Coward

    Gavin

    > We’ve been here before with the open rights mob

    Well, we've all been there before with the sensationalist journo mob, haven't we?

    Tar us all with the same brush not, please. The very reason you could adorn your article with a photo of a macaque is because of its CC licence.

    A different story are the utter drooling retards over at Wankypedia. Not necessarily those (few?) well-intentioned contributors, but the whole lets-suck-each-other's-dicks adminship and blood-sucking WMF employees. They all really should go and get themselves a real job someday.

  36. john devoy

    If a monkey can't hold copyright then it should be down to...whos camera was it? This seems to be more about a growing trend for big online presences to think they're above the laws us peasants have to adhere to.

  37. Herby Silver badge

    Works for hire.

    Give the monkey a banana, and the photographer is the owner. The same thing goes if I'm paid for my work, and the person who pays me gets the benefits.

    Such monkey business.

    Of course, the owner could "license" the work and pay the monkey royalties for the use, but that is a subject of another story.

    1. Marcus Aurelius

      Re: Works for hire.

      Incorrect. Transfers of copyright agreements must be signed and in writing.

      You can't expect a monkey to understand a written agreement so you can't expect the monkey to sign a contract or agreement.

      Anyway, as stated before, if the author is not human, it is not eligible for copyright protection. So there is no copyright to transfer.

  38. Herby Silver badge

    And now for a good thought experiment!

    We have the monkey take a pic that would be considered "kiddie porn". Of course it would be bad, but who would they prosecute?

    Life goes on.

  39. MacroRodent Silver badge

    animal legal rights

    In medieval Times, humans sometimes did take animals to court. Even more amazing is that the animal sometimes won the case!. (Naturally with the help of a lawyer). But I suspect a modern court would throw the maqaque and his lawyer out.

    1. Gazareth

      Re: animal legal rights

      Good job this didn't happen in Hartlepool!

  40. Marcus Aurelius

    An arguable case for Public Domain

    1) The dispute over copyright is international; it is an arguable question whether to apply US, UK or Indonesian IP Law

    2) Where copyright disputes are international, the "law of the shorter term" applies i.e. the duration of any copyright is the shortest of all the jurisdictions

    3) The Monkey was the author of the photograph. It took the photograph, and the owner of the camera had no significant creative input into the work.

    4) Under US law (and possibly other jurisdictions), only Humans can hold copyright. Since in this case the Monkey is the author, the work is Public Domain under US Law

    5) Since in international disputes copyright is the shortest duration of all jurisdictions, the US law prevails and it must be accepted that the work is Public Domain

    1. Brenda McViking
      Pirate

      Re: An arguable case for Public Domain

      I'm with wikimedia on this one. the photographer set it up, but was not the author for copyright purposes. I'm not disputing the fact that it is unfair, unjust or that the photographer didn't put a significant amount of effort in to allow the photograph to be created, but if the monkey would have been the author (if they were human, for instance) and legally cannot be, then there is no author. We all know the law is an ass. This is a prime example.

      If this photographer wanted the copyrights on these images then he should have taken the photographs. Classic catch 22 - as the percieved value in these images is that they were monkey selfies, and their actual value, because they are monkey selfies is 0. If he had taken the exact same images then they'd hold less percieved value, but more actual value. It's a technicality - but in law, technicalities matter.

      Regardless, the photographer has finally got his front page and hence managed to get the full legal value of these images in terms of advertising. Watching him on the Beeb last night - I agree with him that copyright needs reform and is unfit for purpose in the 21st century. I hope he sells a lot more of his portfiolio due to this, sparks a proper debate on copyright and assists in inspiring others to get copyright reformed properly.

    2. Anonymous Coward
      Anonymous Coward

      Re: An arguable case for Public Domain

      @Marcus: could you point us to your Linkedin profile please? I would love to see the extent of your international IP law qualifications. :)

      1. Marcus Aurelius

        Re: An arguable case for Public Domain

        When challenging my IP qualifications, its a good idea to show me yours before I show mine. :-)

        However, I said it was an arguable case - I didn't say anything about my IP qualifications, nor did I say that the argument I was making was guaranteed to win. However since I was a joint author of DeCSS (see bottom of http://www.cs.cmu.edu/~dst/DeCSS/Kesden/index.html) I did get some exposure to US Copyright law.

        The requirement for a human author to be eligible for Copyright registration can be found in S.503.03 ("Works not capable of supporting a copyright claim.") of the regulations. The section on copyright.gov is down but there is a copy on copyright compendium (http://www.copyrightcompendium.com/#503). Read the section 503.03(a) Works-not originated by a human author.- the title alone should be a big enough clue.

  41. Vladimir Plouzhnikov

    Really tiring arm-chair lawyering here...

    The main thing for me is he is claiming he could have sold copies of the picture for 10k over these few years. I call that complete bullshit. He may have got 2k in the first year, true, on a novelty factor. But, once that pic showed up in a couple of trendy magazines no one would have paid 10p for it afterwards...

    So, copyright or no copyright, his claim is an attempt at wringing some cash out of an exhausted asset at someone else's expense. This kind of behaviour is what gives "copyright" a bad name.

    1. NumptyScrub

      Re: Really tiring arm-chair lawyering here...

      True, however if the courts can ask for $9250 per song from someone found guilty of violating the copyright of others, then I don't think asking £10k total off of multiple defendants is actually much of an ask :)

      Not arguing the rights or wrongs, simply pointing out the precedents for (inflated) damages in copyright cases.

    2. Anonymous Coward
      Anonymous Coward

      Re: Really tiring arm-chair lawyering here...

      > So, copyright or no copyright, his claim is an attempt at wringing some cash out of an exhausted asset at someone else's expense.

      As long as that "someone else" is the Wankypedia Foundation, I'm totally up for it. Everyone else is getting a cut while doing sweet fuck all anyway.

  42. Anonymous Coward
    Anonymous Coward

    Petard

    Photographers have been arguing for decades that the person that presses the button own the photograph. This allows lazy bastards like Annie Leibovitz to sit on their arses issuing commands like "light that scene; put the props in an interesting arrangement; sort out the filters; calculate the exposure" and then step in at the last moment so that none of their army of actual creative people can claim to own the result.

    Well, which is it? Is the owner the person that did all the work in preparing for the photograph, or the person that literally only lifted a finger?

    1. Anonymous Coward
      Anonymous Coward

      Re: Petard

      > Photographers have been arguing for decades that the person that presses the button own the photograph

      Can you point to one such claim, please?

      1. Anonymous Coward
        Anonymous Coward

        Re: Petard

        "Can you point to one such claim, please?"

        I can't point to one in print off the top of my head, but I have seen David Bailey, Leibovitz, Hill, and others make the statement either in real life or in interviews on TV. I'm pretty sure it was mentioned in the BBC series "Genius of Photography" in connection with a photographer who used a lot of props and extras.

        Which is not to say that they're right under the letter of the law, but it is a common belief among professional photographers that it is dangerous to allow assistants to actually take the photograph.

  43. Anonymous Coward
    Anonymous Coward

    I'm going to assume the photographer did all the post processing of the picture that Wikipedia are distributing for free & thus surely owns copyright of that evolution of the picture. The same as if someone creates a Pop Art version of the Mona Lisa & sells it....

    Wikipedia may well be able to distribute the unprocessed picture taken by the monkey - if it's ever been posted online!

  44. Anonymous Coward
    Anonymous Coward

    > I'm going to assume the photographer did all the post processing of the picture that Wikipedia are distributing for free & thus surely owns copyright of that evolution of the picture

    If he doesn't, someone else does. The pictures in question contain no EXIF data whatsoever so could not be the originals from his camera. Those pics have been processed by someone else before they were uploaded to Wackpedia.

    1. Marcus Aurelius

      Derivative works

      Lets assume for this argument that the original photo image file as taken by the monkey qualifies for public domain status.

      Unless the contribution to the derivative work as posted on Wikimedia was significant, it remains in the public domain. A small amount of rotation, some cropping and a slight tweaking of the color balance would not qualify.as significant and even then only those specific derivative changes would be protected.

  45. Anonymous Coward
    Anonymous Coward

    Out of curiosity

    Has the photographer already tried hitting them with a DCMA takedown notice?

    Those might be evil, but if they're there might as well use them.

    1. Marcus Aurelius

      Re: Out of curiosity

      Wikimedia would just reply with a counter-notice reiterating their belief that the image is public domain and you would be back to square one where the matter would have to be decided in a court of law.

      Although it does sound strange, WIkimedia have an arguable case that since the monkey was the author and non-human works do not qualify for copyright protection, it is public domain. [I'm not saying they would win a case, but being backed by the legislation is a good starting point :-) ]

  46. cswright

    Whose Jursidiction?

    Whose jurisdiction would the copyright fall under? Where the photo was taken, the nationality of the photographer, where it was uploaded, where it is stored? Someone earlier shared a link to a site explaining selfies and Australian copyright law. Obviously the law is different in every country. It very well could be the photo was uploaded from a location that doesn't recognize other state's copyright laws.

    1. murri

      Re: Whose Jursidiction?

      Precisely my question. When is the copyright applied? At the moment of the creation? And if so, then I infer that the law (if any) describing the copyright would be a the geo location it was taken. Also, I'm not too informed on this, but if one hosts a copyrighted work deemed so from another jurisdiction, it would have to abide by the International copyright treaties if there are any - that is, if they signed the Buenos Aires Convention - not so if not.

      1. Marcus Aurelius

        Re: Whose Jursidiction?

        Yes, US law would likely be the only one that matters since both the Buenos Aires and Berne Conventions recognise the law of the shorter term. In the US copyright regulations clearly state that copyright cannot be obtained on non-human works and therefore the duration of any copyright in the US is zero.

  47. Sarah Balfour

    Give 1,000 monkeys, 1,000 cameras…

    …how long will it take them to, err…

    Nope, can't finish that - I've gibbon up…

    (I'm not well, please don't expect sparkling wit and intellect…).

    But it does raise an interesting question: - if a higher ape, say a chimp, can be taught basic photographic techniques, and then he goes off on a shooting spree, who owns the copyright then…? If the camera has EXIF data which shows the camera to belong to the ape, then what…? Is he treated like a minor and his tutor as his 'parent'…? I'm no legal expert (as is probably evident) but don't kids have some right of ownership…? What if your 7-year-old was an aspiring Bailey, surely he'd own the copyright because he took the pics…?

    Or could it be argued that the chimp was simply aping his tutor…? (Sorry!).

    By the way, speaking of the Librarian, has anyone seen Paul Kidby's 'Ookbench'…? I forget where it is now, I BELIEVE it's somewhere around the British Museum. There were a number of artists commissioned to paint literary themed 'bookbenches' - I forget what the reason was (must have been summat to do with the British Library). There's a website with photos somewhere (probably not taken by non-human primates). I remember Peter Pan, Alice, Lovecraft, Tolkien, Wind In The Willows (that was down by the river somewhere, obviously, along with Alice). There were at least 30 in all, installed all over London. They were due to be auctioned for charity at some juncture, so they may no longer be around…).

    1. Marcus Aurelius

      Gibbon take :-)

      According to US law, works not authored by humans are not eligible for copyright protection. Children, as they are human, are eligible for copyright protection of their works - there is no age limit.

      See http://www.copyrightcompendium.com/#503, especially 503.03(a) Works-not originated by a human author.

      So Terry Pratchett's librarian had better campaign for a change in the law before he writes his memoirs!

  48. FreemonSandlewould

    Riddle me this: A patent is 14 years and done right? How is it that stuff written in the 30's is still copy righted? I side with the folks who are eroding this ridiculous state of affairs. The whole thing is pumped up to benefit big corporations and the litigious. Thus too bad to the monkey guy.

    1. Anonymous Coward
      Anonymous Coward

      "How is that stuff written in the '30s is still copyrighted?"

      Google "Mickey Mouse Protection Act." The first, and likely most informative result you'll find will be a Wikipedia article, and with all the angernation being through at Wikipedia here, I won't dare post the direct link here. (See also: my first-ever post as an Anonymous Coward.) The short of it is that the Walt Disney Corporation figuratively has more money than God, and probably literally more money than the Principality of Liechtenstein, and every time the copyright laws in place threaten to release the incarnation of Mickey Mouse into the public domain, they pour that money down Congresscritters's wallets until they vote to extend.

      That said, this is all a load of bollocks.

      I'm occasionally a writer. Very little of what I write would qualify for original copyright, as most of it is fanfiction (ahem, a "derivative work.") I do, nevertheless, spend an awful lot of time writing, and on dire occasions (such as when my computer is down OH NOES,) I actually write in a notebook. (It's cheaper than crack, and the cramps go away after awhile.)

      I once met a friend of mine in a diner whilst doing this, and over a bowl of oatmeal and a plate of eggs, we talked, and she inquired about my notebook. I wouldn't actually let her read the contents thereof, as they aren't fit to publish anywhere minors or those of a weak temperment might read, but as I sat there, eating my eggs, with my notebook opened to a blank page and my pen on the table, she stood up, asked me to move (I complied, sliding down the bench,) and she sat down where I had been seating. She then proceeded to sketch a bust of a woman.

      She used my pen, and my notebook; I had already "framed the shot," as it were, given that the notebook and pen were in position to be taken up by someone sitting where I was. Clearly, by this argument, I should own the copyright to the sketch she produced?

      I don't think so, and I don't think any reasonable court of law would claim that I do, either.

      Anyway, quite frankly, I think copyright is a massive load of bollocks altogether. The only reason it exists in the first place is because of capitalism, which is ALSO a massive load of bollocks. If weak creators didn't have to fear starvation because of more powerful commercial entities (which are MAXIMUM BOLLOCKS) using their works for something and not paying them their due, then powerful creators wouldn't have a bollock-leg to stand on re: extending copyright indefinitely.

      Mind you, I'm not saying you should, even in circumstances I might consider ideal, just take something which was made and blow a raspberry to the person who made it, but attribution of effort should suffice, not any of this malarky.

      Also, one important implication is being completely ignored here: the freaking monkey took a selfie! Regardless of who owns the bloody copywrong, this seems like an avenue of scientific investigation worth investigating.

      1. Anonymous Coward
        Anonymous Coward

        You spewed forth quite a lot of drivel there. It's evident you're a writer, but there was no need for the most of those paragraphs to get across your weak point. And the point you made is weak. You're saying you set up the canvas and provided the tools and the artist produced the works. The artist used their imagination and their skill. They spent time, and produced this work. In relation to the monkey shot, the photographer did everything but click the shutter. The monkey was just a trigger. Similar to if the photographer had a proximity sensor and the monkey walked up to the camera. The exposure, focus, lighting, everything was set up in advance. And besides - how can a monkey own the copyright anyway?

  49. EssEll

    The Monkey Guy...

    ...neither knows nor cares about what he may or may not be entitled to, not being aware of very much more than where his next banana is.

    FWIW, Wikipedia should be ashamed of themselves. Slater is clearly the owner of this picture and anyone who thinks otherwise is considerably dumber than the simian in question. That "anyone" in this context may include the judiciary is indicative of the quality of (some of) our judiciary, and the relevance of (some of) our laws.

    1. Marcus Aurelius

      Re: The Monkey Guy...

      You're confusing "ownership" with "entitled to copyright protection". The two are entirely different matters, and US copyright law explicitly states that if your work was not authored by a human, you can't get copyright.

      Any law that states you can invent a cure for cancer and get 14 years protection on it, and yet can take a photo of a monkey and be protected for 90 years or so is highly insane. About 15-20 years for both would be enough.

  50. Fruit and Nutcase Silver badge
    Facepalm

    Monkey Glass

    How about equipping a bunch of apes with Google Glass?

    Oh, hang on (to that branch) - Homo Sapiens is a kind of ape

  51. Anonymous Coward
    Anonymous Coward

    It is because of this photographer that this picture is available to the world. Wikimeida appear to have taken advantage here based on a technicality. If the photographer feels aggrieved I think he has a case - I certainly would feel it was like a kick in the face. In future, the only thing that will happen is that the photographer in question or any other photographer will not state that anyone other than him/her self has taken the picture and therefore this situation will not arise. So much for honesty - it can be to your detriment sometimes. Worst thing is, this chap made some money off the photo before it became public and has lost income because of it. That doesn't leave me with a great feeling - thanks wikipedia/media for taking advantage.

  52. Alsee
    Holmes

    RESOLVED: NO COPYRIGHT

    Photographer David Slater attempted to submit a copyright registration with the U.S. Copyright Office. US Copyright Office has refused to register the copyright. Quote: "The Office will not register works produced by nature, animals, or plants".

    http://www.theregister.co.uk/2014/08/22/us_copyright_office_rules_monkeys_selfie_public_domain/

    Wikipedia was on the right side of a copyright dispute... which earns this post the "No Shit, Sherlock" icon.

    P.S. I think TheRegister should have assigned the second story to the same author. After all the snide comments he put in this story it would have been nice to see a mea culpa in the followup.

  53. ScaredyCat
    Trollface

    ..

    If the monkey didn't take the picture then how is it a selfie?

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