The great monkey copyright war of 2014

copyrightHere’s a fun little story which highlights the absurdity of our current intellectual property laws. Yahoo News had a write-up about a photographer who is embroiled in a legal dispute with Wikipedia over a photograph of his which became viral and ended up on Wikipedia website. As the article explains:

“In 2011, Slater spotted a crested black macaque in Indonesia and set up his camera to click a photo. Suddenly, the monkey snatched the camera and started to take selfies…”

The issue is that current intellectual property law favours the one who snapped the picture, regardless of how they came to do so. So when Ellen Degenres handed Bradley Cooper her camera at the Academy Awards and asked him to take a picture, he owned the shot, even though it was both of her, and using her camera.

Wikipedia’s argument, therefore, is that since the monkey himself took the shot, he owns the copyright, not Mr. Slater. And presumably, if the monkey were able to complain, and were to do so, they could take it down.

All kidding aside, there truly are some serious issues to think about here. As Mike Masnick notes via a Techdirt story the truly ‘pernicious’ aspect of this whole thing is the way we as a society have been trained to believe that someone actually has to have the ‘ownership’ in the first place:

“I think a big part of the problem here is that we’ve been trained incorrectly to believe that everything new must be covered by copyright. This is part of the most pernicious aspects of copyright maximalism today — the idea that everything is covered by copyright. Only a few decades ago, nearly all created works were not covered by copyright and were public domain, free to be shared. It was only with the 1976 Copyright Act that the US switched from an “opt-in” policy to a “nearly everything is covered” policy, leading many people to (wrongly) believe that with any photo someone must hold the copyright.”

The truth is, the monkey doesn’t own the picture. Slater doesn’t own it either. Nor does Wikipedia. Nobody owns it. Nobody needs to own it. It’s just out there, being unowned, and that’s okay. Isn’t it?

Editor’s Note: While I desperately wanted to use the image of the monkey in question, the photographer has been sending take down notices to sites which use it. Techdirt still has the picture on their site, assuming you haven’t already seen it on Twitter, Facebook, etc.

5 Comments on The great monkey copyright war of 2014

  1. Considering the fact that the Internet allows access to others’ pictures, etc., it’s a good thing that copyright covers photos, etc., now. That allows recourse when jerks and various ad hacks use personal pics for their own profit.

    I always feel bad for the people who have to see their dead grandmother’s picture turned into a GIF for an insurance company, or their kids turned into spokesmodels. And the profit always goes to the jerks and ad hacks.

  2. Joanna Cabit // August 8, 2014 at 4:52 pm //

    Marilynn, I don’t think anybody is saying NO photographs should be covered. I think what this story is highlighting though is the fallacy that ALL of them should be covered by default, as a matter of course. There were people who commented on the Techdirt story who were on board with the idea that Mr. Slater did not own the picture, but then were tying themselves in knots trying to figure out who did—because it HAD to belong to somebody…

    What this story is highlighting is that this is not a default truth. Not every single piece of media in the entire world belongs to someone, nor should it have to. Why can’t some things just be cool things everyone can look at and use? Not ALL thing, Marilynn. SOME things.

  3. Yeah, Joanna, but, if someone wants their photo, etc., free for anyone to use there’s always sites where they can be posted as well as Creative Commons licenses. That takes care of the problem without taking the rights from the person who owns it.

    This whole argument about copyright is specious, at best. Facetious at worst.

  4. I never understood why photographers could claim copyright on the process of capturing reflected light. Anyone with decent eyesight does it every day. (Or to put it another way, a sound engineer doesn’t automatically own the copyright on all their work.) Personally, I think it’s unfair that wikipedia assumed the macaque was okay with the photograph being in the public domain. I’m sure there’s a lawyer somewhere eyeing this gap in the market and wondering if macaques can be taught enough sign language to be a witness in a copyright court case.

  5. Quoting Steph B. “I never understood why photographers could claim copyright on the process of capturing reflected light.”

    Study copyright law and you’ll discover that it has noting to do with talent or the lack thereof. You could collect your weekly grocery shopping lists for a couple of years and publish that as a book and have it copyrighted. In fact, under the Berne Convention, that copyright would exist from the moment the copy exists.

    In the end, I suspect the photographer will win. It matters not that monkeys snapped the shutter. He set up the apparatus that took them. Think of a photographer at a race whose camera is triggered by the first person crossing the line breaking a beam of light. He still has that copyright because he set up the shot.

    Interestingly, in the U.S., someone who takes a picture of a painting in the public domain (probably meaning finished before 1923), cannot copyright it. Details here:

    The reason is that all the originality necessary for a copyright is consumed by the painter. There’s nothing left for a photographer who, in the eyes of that NY court, merely creates a reproduction. Talent matters not, but creative choice matters a lot.

    But if my memory is correct, you can copyright a picture of a statue. In taking that picture, the photographer uses creative judgment about the lighting and angle, so much so that I needed to get permission from Columbia University for the picture on this cover.

    The statue is of Joseph Pulitzer.

    Copyright law has it quirks, most of which get settled by courts. Given that both sides won’t bend in this dispute, it’s like to end up before a judge. If I were this photographer, I’d sue in the Second District, which has a reputation for being the most friendly to copyright holders.

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