But this happens all the time. The only reason this photo is even being questioned compared to every other animal-accidentally-taking-a-photo photo, or even those where it is intentional (on the part of the photographer) for the subject to accidentally take a photo of itself, is that in this case the subject is grinning at the lens and has opposable thumbs.
The fact that it happens all the time doesn't mean it should automatically be someone's copyright. I don't really care if the situation that has triggered this reaction is the result of "pathetic" human biases or not, the legal question is worth asking; if it goes to court and Wikimedia wins against Slater, then there will be a precedent for all of those other " animal-accidentally-taking-a-photo photos" to be in the public domain too.
The funniest thing is that as the photos are getting so much media attention and discussion, posting the photos for analysis and discussion is pretty clearly covered under fair use in many cases.
Those people are wrong. However, I don't think that sentience is really at issue here, nor even sapience or intelligence.
Luke's argument would apply equally if you replaced the monkey with a human who didn't know what a camera was. It would be a different issue if the monkey had learned (or been taught) that cameras produce photographs, but this was clearly not the case for that monkey.
However, let's take a different example - let's say that you accidentally drop your camera, and hitting the ground causes it to go off and take an awesome photo. My argument is that in a situation like that, no one should get copyright for that photo, and I think that there's a reasonable case to be made that the situation with this monkey photo is analogous.
The "no copyright" claim by wikipedia editors falls flat on two different fronts. Maybe three. And then they combine all those things together with a twist of logic to get the result they want.
This has nothing to do with human exceptionalism. Really. I have no problems with apes and monkeys and other self-aware animals actually have more rights, including ownership rights. But if animals have no ownership rights (and they don't) then the copyright doesn't magically disappear in this case, because even if the subject DID have ownership rights, nobody would dispute the photographer's copyright claim. As in, if you were taking photos of a human subject, and they picked up your camera and smacked it around and accidentally took photos while admiring themself in the lens reflection, and then dropped the camera when bored, there is no sign of intent to create, keep, store, own, edit, use, share, hide, or profit from the photos. Just one of those things would probably be enough to let the human subject make a copyright claim.
In this case it didn't happen. In every other situation where someone (human) other than the owner of the camera presses the shutter button under the direction or the urging of the camera owner (or operator) it doesn't happen either, which is the basis of EVERY SINGLE PHOTO SHOOT EVER involving a camera assistant.
And that is before we raise the question "If an animal that triggers a photography trap owns the copyright (but can't) then what about photographs triggered involuntarily by human subjects?" At what point does every person own every bit of security camera footage in a system that senses movement to start the recording? This leads down many, many rabbit holes.
My main point:
If wikipedia's side wins out, it will literally overturn the entire history of photography. Every single image will be up for grabs, and will have to be fought over.
Now, I'm not saying that overturning the entire structure of copyright is a bad thing. Who knows, maybe there is overwhelming reason for wikipedia to be right (though I don't think so).
But no court is going to overturn a hundred years' worth of copyright claims for this one single photo. And if wikipedia thinks they might have a case, then they are being utter morons.
And yet they want to fight it out! Which means they are not only morons, but are also being really fucking unkind to the photographer in the process. It's utterly spiteful, in my opinion.
The "no copyright" claim by wikipedia editors falls flat on two different fronts. Maybe three. And then they combine all those things together with a twist of logic to get the result they want.
This has nothing to do with human exceptionalism. Really. I have no problems with apes and monkeys and other self-aware animals actually have more rights, including ownership rights. But if animals have no ownership rights (and they don't) then the copyright doesn't magically disappear in this case, because even if the subject DID have ownership rights, nobody would dispute the photographer's copyright claim.
Luke, you're making a presumption that copyright exists by default, and then it's just a matter of working out who gets to have it.
It's not a matter of copyright "magically disappearing" because it ought to go to an animal, but that animal can't have it. The argument is that the copyright doesn't even appear in the first place, because the legal criteria for copyright to be present simply aren't met.
As in, if you were taking photos of a human subject, and they picked up your camera and smacked it around and accidentally took photos while admiring themself in the lens reflection, and then dropped the camera when bored, there is no sign of intent to create, keep, store, own, edit, use, share, hide, or profit from the photos. Just one of those things would probably be enough to let the human subject make a copyright claim.
I agree that if the subject intended to take a photo, they would have a copyright claim. However, if, as you propose, the photo happened entirely by accident, then no one should have the copyright. It makes no difference whether a human took the photo entirely by accident, or if an animal took the photo entirely by accident. Why is this a problem?
In this case it didn't happen. In every other situation where someone (human) other than the owner of the camera presses the shutter button under the direction or the urging of the camera owner (or operator) it doesn't happen either, which is the basis of EVERY SINGLE PHOTO SHOOT EVER involving a camera assistant.
Sure; because you've specifically said this happens under the direction or urging of the camera owner or operator, I don't see a problem with them having the copyright.
And that is before we raise the question "If an animal that triggers a photography trap owns the copyright (but can't) then what about photographs triggered involuntarily by human subjects?" At what point does every person own every bit of security camera footage in a system that senses movement to start the recording? This leads down many, many rabbit holes.
My main point:
If wikipedia's side wins out, it will literally overturn the entire history of photography. Every single image will be up for grabs, and will have to be fought over.
Nope, not at all; no rabbit holes, no slippery slope. It wouldn't apply to security footage, and it wouldn't apply to photography traps. The point is that this only applies to photos taken by accident, and for such photos, no one gets the copyright, regardless of whether it was accidentally set off by a human, an animal, or a rock.
Now, I'm not saying that overturning the entire structure of copyright is a bad thing. Who knows, maybe there is overwhelming reason for wikipedia to be right (though I don't think so).
But no court is going to overturn a hundred years' worth of copyright claims for this one single photo. And if wikipedia thinks they might have a case, then they are being utter morons.
And yet they want to fight it out! Which means they are not only morons, but are also being really fucking unkind to the photographer in the process. It's utterly spiteful, in my opinion.
How is it unkind to want to fight a case when you think you're in the right? It's only if Wikimedia thinks they're wrong but wants to go through with it anyway that it becomes spiteful.
I can understand your points, Luke. I started to read up and understand some of the ramifications of the controversy last night. I think some of it whiffs of slippery slope, but I do agree that it'd be pretty hard to quantify a line between photographer and subject in the case of triggered photos like this. Frankly I don't care who set up the equipment (in a space freely available to the subject anyway) and I don't think that entitles them to anything. I think that's a poor argument.
I also don't think it's necessarily a bad thing if people caught on security footage had some rights w.r.t. that footage, especially if they're not trespassing or committing a crime...
Jeremy, I think we have found your new welding mask.
Okay, I would probably wear this, but that type of mask is tough to use due to not being able to see much with it on, thus making it difficult to strike the arc. I use an auto darkening hood at work. But that is cool.
So my dad's been lecturing me about how I have to vote, so I'm trying to find candidates that I agree with. Unfortunately, this is all that that search got me:
Nope, not at all; no rabbit holes, no slippery slope. It wouldn't apply to security footage, and it wouldn't apply to photography traps. The point is that this only applies to photos taken by accident, and for such photos, no one gets the copyright, regardless of whether it was accidentally set off by a human, an animal, or a rock.
I have taken many photos by accident. Many. Loads of photographers have too. If someone (in this case Wikipedia) wants to state that the photo was taken by accident, and is in the public domain, then shouldn't be up to them to prove it? Can they just unilaterally state it, and then I have to fight them in court?
And yet they want to fight it out! Which means they are not only morons, but are also being really fucking unkind to the photographer in the process. It's utterly spiteful, in my opinion.
How is it unkind to want to fight a case when you think you're in the right? It's only if Wikimedia thinks they're wrong but wants to go through with it anyway that it becomes spiteful.
If they think they have a case, they should, in court, challenge the copyright claim by the photographer. They may or may not have a case. But they are using their power as a massive repository of media and data to declare something as so, and I think that is a real dick move. They should take a vote of admins to see if they want to challenge the copyright status of a photo, not a vote to change the status because fuck you.
I can understand your points, Luke. I started to read up and understand some of the ramifications of the controversy last night. I think some of it whiffs of slippery slope, but I do agree that it'd be pretty hard to quantify a line between photographer and subject in the case of triggered photos like this. Frankly I don't care who set up the equipment (in a space freely available to the subject anyway) and I don't think that entitles them to anything. I think that's a poor argument.
I also don't think it's necessarily a bad thing if people caught on security footage had some rights w.r.t. that footage, especially if they're not trespassing or committing a crime...
In many place you do have right to that footage. You can request a copy, no problem.
I understand the concerns about this being a slippery slope argument, but if a single non-legal entity (wikipedia) can declare things that others claim copyright on as public domain, I really think it could go a long way beyond a single monkey photo.
Nope, not at all; no rabbit holes, no slippery slope. It wouldn't apply to security footage, and it wouldn't apply to photography traps. The point is that this only applies to photos taken by accident, and for such photos, no one gets the copyright, regardless of whether it was accidentally set off by a human, an animal, or a rock.
I have taken many photos by accident. Many. Loads of photographers have too. If someone (in this case Wikipedia) wants to state that the photo was taken by accident, and is in the public domain, then shouldn't be up to them to prove it? Can they just unilaterally state it, and then I have to fight them in court?
Yes, because that's how copyright works. It is up to the copyright holder to challenge someone for infringing on their copyright. The alternative is ludicrous.
As for the question of taking photos by accident, well, it should probably depend on the extent to which it is an accident. However, in the case of a complete accident, why should you have the copyright?
And yet they want to fight it out! Which means they are not only morons, but are also being really fucking unkind to the photographer in the process. It's utterly spiteful, in my opinion.
How is it unkind to want to fight a case when you think you're in the right? It's only if Wikimedia thinks they're wrong but wants to go through with it anyway that it becomes spiteful.
If they think they have a case, they should, in court, challenge the copyright claim by the photographer. They may or may not have a case. But they are using their power as a massive repository of media and data to declare something as so, and I think that is a real dick move. They should take a vote of admins to see if they want to challenge the copyright status of a photo, not a vote to change the status because fuck you.
Actually, I'm pretty sure Wikimedia's best approach to take this to court is to do precisely what they are doing. After all, this is a negative right asserted by the photographer, rather than a positive right being asserted by Wikimedia.
Basically, my impression is that in order for this case to go to court the photographer has to assert his own copyright claim, because until that happens Wikimedia cannot claim to be adversely affected, and hence they would not have standing to sue.
This is how copyright works, and (assuming it exists) how it should work.
I understand the concerns about this being a slippery slope argument, but if a single non-legal entity (wikipedia) can declare things that others claim copyright on as public domain, I really think it could go a long way beyond a single monkey photo.
If that is a slippery slope, then it's a slippery slope we've already been on for a long time, and as far as I can tell the "slipping" with regards to copyright almost always happens in the other direction...
I didn't read up on the full story, but I'd assumed the photographer had already claimed copyright. We're just stating the same argument in two different ways.
Again, my point is that Wikimedia people are being dicks about this one. Their way of challenging is pure "fuck you", trying to do as much damage as possible without even the slightest hope of coming out on top.
Not to belabor anything, but I just want to make it clear that I'm in no way arguing in favor of Wikimedia's conduct. Was really only commenting on whether it's reasonable for the monkey to hold a copyright.
If it was legal for any non-human animal to have ownership of anything, then yes. But it isn't, so no. Legally the only way to say this should be in public domain is to have all accidental photos be public domain, an idea fraught with problems (especially if a third party can simply declare something an accident). Or, I guess, we can give all animals property rights.
I didn't read up on the full story, but I'd assumed the photographer had already claimed copyright. We're just stating the same argument in two different ways.
I guess Slater merely claiming copyright could be enough for Wikimedia to seek a declaratory judgement; as far as I know, the legal standard would be this:
(1) the plaintiff has actually and personally suffered injury or harm "in fact", (2) the injury or harm suffered by the plaintiff is fairly traceable to the defendant's actions and (3) the injury or harm would be capable of redress by the court.
It's true that, given that Slater is already threatening to sue them at this point, that should probably be enough to give Wikimedia standing.
As far as I can tell, your argument is that great harm was done by Wikimedia putting the photo up and/or keeping it up. However, if they had never put the photo up they wouldn't have had standing to sue in the first place. I guess maybe they could have taken the photo down at Slater's request and then sued for relief, but why should they do that? Does that mean that any time someone claims copyright on something, even if you don't think their claim is at all valid, you should simply take it down?
Frankly, I don't see why Wikimedia should be under any legal or moral obligation to be the ones to take this to court. I don't see why it makes such a big difference whether Slater or Wikimedia are the ones to bring the case, either.
Again, my point is that Wikimedia people are being dicks about this one. Their way of challenging is pure "fuck you", trying to do as much damage as possible without even the slightest hope of coming out on top.
If I strongly believed something was in the public domain and wanted to challenge a copyright, I would do exactly the same thing that Wikimedia is doing. As for them not having "even the slightest hope", I'd be happy to make a bet with you for, say, $10 of mine vs $100 of yours that Wikimedia will win this. If they truly don't have a chance, then that's just free money for you, no?
It's ridiculous to say they're simply trying to do "as much damage as possible" absent evidence of malicious intent. Besides, if David Slater takes them to court then he can seek damages for the harm done by Wikimedia - that's simply just how the system is supposed to work.
If it was legal for any non-human animal to have ownership of anything, then yes. But it isn't, so no. Legally the only way to say this should be in public domain is to have all accidental photos be public domain, an idea fraught with problems (especially if a third party can simply declare something an accident). Or, I guess, we can give all animals property rights.
Nope, I don't think it's fraught with problems. You can already go ahead and "declare" anything you like to be in the public domain; it is then the copyright holder's prerogative to go ahead and sue you. I really don't see where the problem is, Luke.
Comments
As far as I'm concerned, I'd be interested in seeing it go to court, but I think David Slater will probably win. The fact that it happens all the time doesn't mean it should automatically be someone's copyright. I don't really care if the situation that has triggered this reaction is the result of "pathetic" human biases or not, the legal question is worth asking; if it goes to court and Wikimedia wins against Slater, then there will be a precedent for all of those other " animal-accidentally-taking-a-photo photos" to be in the public domain too.
Luke's argument would apply equally if you replaced the monkey with a human who didn't know what a camera was. It would be a different issue if the monkey had learned (or been taught) that cameras produce photographs, but this was clearly not the case for that monkey.
However, let's take a different example - let's say that you accidentally drop your camera, and hitting the ground causes it to go off and take an awesome photo. My argument is that in a situation like that, no one should get copyright for that photo, and I think that there's a reasonable case to be made that the situation with this monkey photo is analogous.
This has nothing to do with human exceptionalism. Really. I have no problems with apes and monkeys and other self-aware animals actually have more rights, including ownership rights. But if animals have no ownership rights (and they don't) then the copyright doesn't magically disappear in this case, because even if the subject DID have ownership rights, nobody would dispute the photographer's copyright claim. As in, if you were taking photos of a human subject, and they picked up your camera and smacked it around and accidentally took photos while admiring themself in the lens reflection, and then dropped the camera when bored, there is no sign of intent to create, keep, store, own, edit, use, share, hide, or profit from the photos. Just one of those things would probably be enough to let the human subject make a copyright claim.
In this case it didn't happen. In every other situation where someone (human) other than the owner of the camera presses the shutter button under the direction or the urging of the camera owner (or operator) it doesn't happen either, which is the basis of EVERY SINGLE PHOTO SHOOT EVER involving a camera assistant.
And that is before we raise the question "If an animal that triggers a photography trap owns the copyright (but can't) then what about photographs triggered involuntarily by human subjects?" At what point does every person own every bit of security camera footage in a system that senses movement to start the recording? This leads down many, many rabbit holes.
My main point:
If wikipedia's side wins out, it will literally overturn the entire history of photography. Every single image will be up for grabs, and will have to be fought over.
Now, I'm not saying that overturning the entire structure of copyright is a bad thing. Who knows, maybe there is overwhelming reason for wikipedia to be right (though I don't think so).
But no court is going to overturn a hundred years' worth of copyright claims for this one single photo. And if wikipedia thinks they might have a case, then they are being utter morons.
And yet they want to fight it out! Which means they are not only morons, but are also being really fucking unkind to the photographer in the process. It's utterly spiteful, in my opinion.
It's not a matter of copyright "magically disappearing" because it ought to go to an animal, but that animal can't have it. The argument is that the copyright doesn't even appear in the first place, because the legal criteria for copyright to be present simply aren't met. I agree that if the subject intended to take a photo, they would have a copyright claim. However, if, as you propose, the photo happened entirely by accident, then no one should have the copyright. It makes no difference whether a human took the photo entirely by accident, or if an animal took the photo entirely by accident. Why is this a problem? Sure; because you've specifically said this happens under the direction or urging of the camera owner or operator, I don't see a problem with them having the copyright. Nope, not at all; no rabbit holes, no slippery slope. It wouldn't apply to security footage, and it wouldn't apply to photography traps. The point is that this only applies to photos taken by accident, and for such photos, no one gets the copyright, regardless of whether it was accidentally set off by a human, an animal, or a rock. How is it unkind to want to fight a case when you think you're in the right? It's only if Wikimedia thinks they're wrong but wants to go through with it anyway that it becomes spiteful.
I also don't think it's necessarily a bad thing if people caught on security footage had some rights w.r.t. that footage, especially if they're not trespassing or committing a crime...
I understand the concerns about this being a slippery slope argument, but if a single non-legal entity (wikipedia) can declare things that others claim copyright on as public domain, I really think it could go a long way beyond a single monkey photo.
As for the question of taking photos by accident, well, it should probably depend on the extent to which it is an accident. However, in the case of a complete accident, why should you have the copyright? Actually, I'm pretty sure Wikimedia's best approach to take this to court is to do precisely what they are doing. After all, this is a negative right asserted by the photographer, rather than a positive right being asserted by Wikimedia.
Basically, my impression is that in order for this case to go to court the photographer has to assert his own copyright claim, because until that happens Wikimedia cannot claim to be adversely affected, and hence they would not have standing to sue.
This is how copyright works, and (assuming it exists) how it should work.
If that is a slippery slope, then it's a slippery slope we've already been on for a long time, and as far as I can tell the "slipping" with regards to copyright almost always happens in the other direction...
Again, my point is that Wikimedia people are being dicks about this one. Their way of challenging is pure "fuck you", trying to do as much damage as possible without even the slightest hope of coming out on top.
As far as I can tell, your argument is that great harm was done by Wikimedia putting the photo up and/or keeping it up. However, if they had never put the photo up they wouldn't have had standing to sue in the first place. I guess maybe they could have taken the photo down at Slater's request and then sued for relief, but why should they do that? Does that mean that any time someone claims copyright on something, even if you don't think their claim is at all valid, you should simply take it down?
Frankly, I don't see why Wikimedia should be under any legal or moral obligation to be the ones to take this to court. I don't see why it makes such a big difference whether Slater or Wikimedia are the ones to bring the case, either. If I strongly believed something was in the public domain and wanted to challenge a copyright, I would do exactly the same thing that Wikimedia is doing. As for them not having "even the slightest hope", I'd be happy to make a bet with you for, say, $10 of mine vs $100 of yours that Wikimedia will win this. If they truly don't have a chance, then that's just free money for you, no?
It's ridiculous to say they're simply trying to do "as much damage as possible" absent evidence of malicious intent. Besides, if David Slater takes them to court then he can seek damages for the harm done by Wikimedia - that's simply just how the system is supposed to work. Nope, I don't think it's fraught with problems. You can already go ahead and "declare" anything you like to be in the public domain; it is then the copyright holder's prerogative to go ahead and sue you. I really don't see where the problem is, Luke.