David J Slater, a British photographer set up a camera in Indonesia to capture monkeys at play. One monkey managed to snap an extraordinary “selfie”.
Wikipedia claims that because the monkey hit the shutter button, the image belongs in the Public Domain. I disagree…
As a law student studying intellectual property, here are my thoughts. A website is not REQUIRED to take down media that is allegedly infringing. Wikimedia’s refusal to take down the image is based on their assertion that it is fair use because it is public domain. They aren’t just “sticking their fingers in their ears” and ignoring the request; they have a legal basis for continuing to use the image. I’m sure that they’ve had legal advice from their own attorneys on this. Additionally, Wikimedia is not the deciding party; their assertion that it is public domain does not make it so. They are merely defending their use of the photo.
The entire reason that there is an argument is because this is a novel issue. Copyright law does not address in whom copyright can vest. However, several days after you posted this the Copyright Office released the 3rd Edition of their Compendium of Copyright Office Practices in which they opine that they will only register “an original work of authorship . . . created by a human being” and specifically state that they “will not register works produced by . . . animals.”
Furthermore, David’s claims that he set up the camera, settings, etc. in order to accomplish this goal are contrary to the statements that he made in 2011 where he stated that he left his equipment unattended and the monkey took the camera and began taking pictures. There are even several photos where David can be seen trying to get the camera back. I believe if he had indeed intentionally given the camera to the monkey, I believe that this may have come out differently.
I don’t think your explanation of derivative works was fully accurate, but that is irrelevant to this point. Your arguments that “we have not seen the pictures the monkey took, only David’s derivative works” is an interesting one, however, I think that it ultimately fails. Merely changing the file type of the picture would be insufficient to gain David a copyright in the “new” photo. Likewise, I doubt that the court would consider sharpening the image or color sufficient to qualify it as a derivative work in which he could have copyright interest. For example, if I took a sound recording from the public domain and changed it’s file format or used software to clean the noise from a recording, these changes would not be significant enough to give me a copyrightable interest in the recording.
I did enjoy hearing your thoughts on the issue. Currently, I am writing a paper regarding the Copyright Office’s human authorship requirement. I would be happy to send you a copy and hear your thoughts when it is complete if you care to read it.
Yes please! Send it my way when it’s finished.
this is fucking absurd. The image belongs to the creator, Mr. Slater. End of story. It’s not public domain unless he wants it to be. What is happening is Wikimedia wants to use this image, and is using a flimsy legal loophole to do so and it’s disgusting. Whether the law says they have to right to continue to use the photo or not, they should do the right thing and give Mr. Slater control over his intellectual property. Just because you can legally do something, does not make it right.
I think that the person that owns the equipment is the owner of the resulting images however captured.
NASA did not directly press the button of the moon or Mars shots but own the images. A photographer that takes a time lapse image did not press the button to capture all images.
The photographer provided the means with his camera with media storage with batteries, turned on, with settings set to capture images however those images were captured on his device. His media stored the image, how can ownership transfer to any being that is attached to the shutter button? The state of the chemicals on a photographic film or electrons in a solid state array do not get owned based on the way the button is pressed. The owner of the media should be the owner of the image that the photons initiated in the media.
If the pic was not an internet sensation on one would care in the least. It is out there now and I will have it on my desk top as my background for some time. Wahoo monkey.