Interesting Copyright Dispute Over Wildlife Image

[Rachel Hollander]

I doubt this will affect many of us but an interesting dispute nonetheless:

http://news.msn.com/offbeat/who-owns-this-monkey%e2%80%99s-selfie-1

"When a monkey commandeered a nature photographer’s camera on a small Indonesian island a few years ago, the results were extraordinary. Among the images captured by the crested black macaque were a few amazing images of himself..."

Wikipedia and the photographer who owned the camera are now in a dispute.

[Ian Cassell]

Interesting, Rachel. I suppose Wikipedia would also claim that a photograph taken with a trigger (e.g. bats) are also not owned by the photographer who set up the trigger?

[Doug West]

I agree with Wiki...the monkey took the image, not the photographer. So unless the monkey files,
I say public domain.

Doug

[Grady Weed]

Just another example of someone, a corporation here, wanting something for free! Be careful of what you post, how you post it etc....I am all for a watermark right across the front now...sad...

[Rachel Hollander]

The trigger is distinguishable because the photographer set up the camera, chose the location and controlled or contributed to the creative direction the triggered photo captured. Here the monkey grabbed the camera, ran off and apparently triggered the shutter hundreds of times which resulted in mostly oof images but at least this one in focus portrait. I'm sure some will argue that photographer set the ss, aperture and ISO but we don't actually know that. It is certainly possible that a monkey capable of pressing the shutter button could also turn a dial changing the settings. Though such change would not be purposeful, I'm just pointing out that we don't know if the photographer input the settings.

Think about the situation where you are walking on the street and you see a tourist taking a photo of their family in front of a landmark, you either offer or the tourist asks you to take the photo so they can be in the picture. You do so. Does the tourist own the copyright because it is his/her camera or do you own the copyright because you pressed the button? Most would say the person who presses the shutter button owns the copyright (but doesn't enforce it because there is no commercial value to the image). Does it matter if the tourist positioned his family or you did? Were you simply the tourist's assistant or agent even though no written work made for hire agreement existed? What happens if something newsworthy or unique happens in the bg at the moment you press the shutter button so that the photo now has commercial value?

The article I linked to mentions the "Ellen DeGeneres Selfie" taken at the Oscars. Bradley Cooper actually pressed the shutter button supposedly at the last minute because he was at the bottom of the image and had longer arms. There are legal arguments that support Ellen owning the copyright, ones supporting Bradley owning it and ones supporting joint authorship. There are also some who say because it was staged during the Oscar telecast as part of the show and Samsung's sponsorship that the Academy owns the copyright.

Copyrights and copyright protections are almost entirely statutory in nature. In some instances the law hasn't caught up with available technology. It will be interesting to see how this case turns out.

[Andrew Merwin]

What about the legal doctrine that: "possession is nine-tenths of the law"? It seems to me that the photographer owned the camera & all the images regardless of who or what pressed the shutter. I think Wikipedia needs permission to use the images. That said, maybe the doctrine of "fair use" would apply to this situation. Regardless, this dispute & similar disputes is a negative comment on our culture.

[Daniel Cadieux]

Interesting, unique, and difficult situation! I'm sure copyright laws differ, albeit sometimes ever so slightly, from country to country, but still is a complicated issue for sure. For every person who is so certain of their position being correct there is another that is just as certain of their opposite take on it. The camera's owner never planned for this photograph to happen, it was a fluke, and certainly not of his artistic direction or vision. The monkey, well, despite having pressed the shutter, does not have authorship rights like us humans do - certainly not copyrights. As much as I do not know where I stand here (as far as the legality of it) I do know that If I was in this position I would be just as upset as the camera's owner is I'm sure of it...and I think not many among us would just shrug it off as "public domain" and let it slide so easily. Man, a tough spot to be in....

The monkey does have a teaser of a smile though...as if it is saying "watch where this will go...and good luck with that...":S3:

[Greg Basco]

Interesting, Rachel. I suppose Wikipedia would also claim that a photograph taken with a trigger (e.g. bats) are also not owned by the photographer who set up the trigger?

Ian, I employ monkeys to set up my triggers here in Costa Rica, so I guess I'm in double trouble :S3:

Cheers,
Greg

[Doug Campbell]

Does anyone here honestly believe the animal in question actually took the picture? I, for one, seriously doubt it.

[Daniel Cadieux]

I do not see why it could not have...it was not deliberate obviously, and I doubt the in-camera file looks anything as good as the processed image. I could see how the monkey may have accidentally pressed the shutter and become curious about the noise and thus repeating it to hear it again and again, combined with being just as curious about seeing its reflection in the lens front glass and there you go - macaque selfie(s).

[Rachel Hollander]

The only thing that made the image marketable was his claim that the monkey took it. I agree with Daniel and presume he had photographs of the macaques playing with his camera to prove that the monkey took it.

Daniel - Because of the Berne Convention copyright laws are similar in most signatory jurisdictions.

[Grady Weed]

What about the legal doctrine that: "possession is nine-tenths of the law"? It seems to me that the photographer owned the camera & all the images regardless of who or what pressed the shutter. I think Wikipedia needs permission to use the images. That said, maybe the doctrine of "fair use" would apply to this situation. Regardless, this dispute & similar disputes is a negative comment on our culture.


Why do people think it is OK to use something without permission anymore? If it is not yours, it is stealing! Plain and simple! You do not need a lawyer to tell you that or copyright laws either.

Daniel above said "The monkey, well, despite having pressed the shutter, does not have authorship rights like us humans do - certainly not copyrights. As much as I do not know where I stand here (as far as the legality of it) I do know that If I was in this position I would be just as upset as the camera's owner is I'm sure of it...and I think not many among us would just shrug it off as "public domain" and let it slide so easily."

What reason could someone have for wanting to take an image without compensating the photographer? Greed, dishonesty and a whole host of other bad attributes. This is why many good photographers will not post anymore or build web sites, fear of others stealing their images. It's too bad, but it will only get worse. And so what if the image is a real selfie or a half hoax image, Wikiapedia did not take it and therefore has no right to use it without permission!

[Grady Weed]

So I make my point a bit more clear, here is a link to a site that is using the so called monkey selfie as some ones avatar: http://www.youtube.com/user/rgdaniel I found it while looking at Doug West post above. One of the commenters on Doug's link, go here, several comments down: https://www.youtube.com/watch?v=lrdkFXsr5Us some guy named Bob Daniel. So tell me again why some think it is OK to use another's image without permission??? Will this nonsense ever end?

[Jerry van Dijk]

Our national newagency just reported that The American Copyright Office agrees with Wikimedia and have changed their rules for copyright. Images or artforms created by animals (and interestingly, also by devine and supernatural beings) can not be copyrighted. Although this case is not specifically mentioned, the first example given is 'a photo taken by a monkey'. http://www.latimes.com/nation/nationnow/la-na-nn-monkey-selfie-copyright-20140821-story.html

[Marina Scarr]

Very interesting situation. If it was deliberate and the photographer set everything up in hopes the monkey would take a selfie, then I think it's the property of the photographer.

[David Stephens]

Our national newagency just reported that The American Copyright Office agrees with Wikimedia and have changed their rules for copyright. Images or artforms created by animals (and interestingly, also by devine and supernatural beings) can not be copyrighted. Although this case is not specifically mentioned, the first example given is 'a photo taken by a monkey'. http://www.latimes.com/nation/nationnow/la-na-nn-monkey-selfie-copyright-20140821-story.html

Wow!! So this mean that a wildlife photographer can risk life and limb to climb a Russian mountain in winter, find the perfect place to set up a trail camera, come back a day later to find that a snow leopard posed perfectly and he has no right to copyright the image. That seems outrageous. Even though the animal triggered the shutter, the photographer had to know a lot and chose a great place in order to get a great image. Thousands and thousands of trail camera images are posted every day, but few are worthy of framing, but the photographer should have some rights when everything finally clicks.

[Daniel Cadieux]

David, although I do not agree with the verdict announced, your scenario is not the same and is still the photographer's copyright. In your scenario the photographer set up everything deliberately with the intention to get the shot he eventually got at the spot it was setup. In the "monkey selfie" situation the photographer did not plan on getting his gear "stolen" and used accidentally by the macaque. A total fluke. If the Snow Leopard somehow got hold of the camera, walked away with it, then accidentally took a few selfies (or whatever other types of images) then that would be what this case is about.

[David Stephens]

David, although I do not agree with the verdict announced, your scenario is not the same and is still the photographer's copyright. In your scenario the photographer set up everything deliberately with the intention to get the shot he eventually got at the spot it was setup. In the "monkey selfie" situation the photographer did not plan on getting his gear "stolen" and used accidentally by the macaque. A total fluke. If the Snow Leopard somehow got hold of the camera, walked away with it, then accidentally took a few selfies (or whatever other types of images) then that would be what this case is about.

That's what I thought we were talking about too Daniel, until I read that LA Times article. It seemed broader than the situation that you describe. I'd like to see the law or Ruling itself. Relying on the LA Times for legal guidance is not my preference.

[Daniel Cadieux]

From the article:
A public draft of the Compendium of U.S. Copyright Office Practices, Third Edition — which was released Tuesday (http://copyright.gov/comp3/announcement.html) and, after final review, is to take effect in mid-December — says the office will register only works that were created by human beings.

“Works produced by nature, animals or plants” or “purportedly created by divine or supernatural beings” don’t count, it says. The first example in that category is “a photograph taken by a monkey.”

To take effect in mid-December: Does that mean that technically the photograph should be taken down from Wikipedia and the copyright presumably the camera's owner until then?

I think also the key word in the quote taken from the draft is "works produced" by nature.... The example of a setup photo trap is actually "produced" by the photographer. The shutter being tripped by an animal is the result wanted, not the unexpected. Anyhow, that's just my layman's attempt at it:S3:.

[Rachel Hollander]

The Compendium is not a change in the copyright law at all. It is only an update to the practices and procedures of the U.S. Copyright Office on how it applies and administers the existing law. Apparently, it is the first major update/overhaul to their administrative practices in 20 years. It also doesn't definitively answer the issue on the macque selfie, rather it means that the U.S. Copyright Office would not register the copyright. A court of law could still rule for the British photographer but he has an uphill battle.

So Daniel, the answer to your first question is likely no.

I agree with your second point but I am not aware of any binding precedent or challenges regarding camera traps. That doesn't mean they don't exist though.