Enhance 224 to 176. Enhance, stop. Move in, stop. Pull out,
track right, stop. Center in, pull back. Stop. Track 45 right. Stop. Center
and stop. Enhance 34 to 36. Pan right and pull back. Stop. Enhance 34 to
46. Pull back. Wait a minute, go right, stop. Enhance 57 to 19. Track 45
left. Stop. Enhance 15 to 23. Give me a hard copy right there.
Our new robot overlords probably own most of the photos out there by this logic.
There’s nothing original or creative about the photo?
Why are so many people interested in this photo, and not the hundreds of other similar photos?
And I didn’t say they did. You said the monkey should own the rights, but this whole argument is about Wiki’s position that no one does. So your plea for greater rights for animals is out of left field. Off topic almost. I honestly thought you were probably joking at first, hence my “not even wrong” post.
Go back to my original point, which was that the law has it wrong and no one except artists should be able to say how work is made. It might be hazardous. I will acknowledge that, but lawyers slicing and dicing are unlikely to know how it is done and will get it wrong. Drawing arbitrary but clear lines doesn’t make it any more right. Ultimately the law needs to be practicable, enforceable and useful to society, right? Not making odd and unnecessary points about animal rights when we can’t even say for sure that animals other than humans can form intent. I am not a lawyer, ha! but I am an artist and have some pretty sophisticated ideas about how we work that are founded in tradition and practice and this idea that I needed to intend to make that specific work is just not a real reflection of what happens. Art changed radically in the 20th century, just like science and other fields. One of the things that happened was that new techniques emerged that would skate right over these lines you are trying to enforce. Should artists have to step back and say,“Woah. we better not go there?” I don’t think that would be good for anyone.
Thank you for continuing the conversation. I do respect your opinion despite my churlishness.
Let’s take a walk through a contemporary art museum and you can explain to me which works are art and which not, which are the work of the artist on the label and which are not. The idea of intent has many layers. Taking a stand in favor of a particular layer of intention may simplify the discussion, but it doesn’t reflect reality. This is the point I was making from the beginning and you have more or less illustrated my fear with your insistence on black and white distinctions.
I am glad you are not a Libertarian. I was worried for you (winky emoticon.)
Edited to add: It’s a gray area here and I am saying the law should favor a living human artist over some invented standard of purity for creation.
It all comes down to intention. It’s clear that although the guy with the cameras intended to get pictures of monkeys, he didn’t do anything at all with the intention to capture this particular picture of a monkey.
Camera ownership and button-pressing are red herrings.
I would agree that the work passes the threshold for creativity/originality; but that the aspect of it performed by the photographer (as much as I’d personally be in favor of paying him for being the guy to slog out there) does not meet the definition of authorship of the work, while the aspect he did perform falls under ‘sweat of the brow’.
17 USC 101 says that:
“A work is “created” when it is fixed in a copy or phonorecord for the first time; where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time, and where the work has been prepared in different versions, each version constitutes a separate work.”
As for what ‘fixed in a copy’ means:
““Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed.”
and
“A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.”
In this case, the issue would seem to be that the fixation of the work (to my reading, that would have to be when the image file was written to the memory card from the camera RAM buffer) was not “by or under the authority of the author”.
The photographer himself states that the monkey was in unplanned and unexpected control of the camera at the time of fixation, so either the monkey the author(if monkeys are allowed to be authors for the purpose of the statute) or the work is without author(if they aren’t); but the image was definitely not taken ‘by or under the authority of the author’ if the author is supposed to be the photographer.
The variable that remains up in the air is how much postprocessing the image received: mere copying or compression of the file would be hard pressed to constitute originality, image adjustment might, substantially creative editing presumably would(though Bridgeman Art Library v. Corel strongly suggests that a photographic workflow is not necessarily accorded much respect as creative).
I don’t see how the photographer can be the ‘author’ of the work for these purposes, given the lack of direct or delegated agency at the time of fixation; and it seems quite likely that the steps taken from point of creation to wikipedia do not rise to the level of creativity required to establish authorship of a derivative work with a copyright of its own.
So who owns the copyright on this one?
Because if not for the person (the only one, mind you) creating the situation in the first place, it wouldn’t have happened. This is so absurd. Because the monkey initiated the shutter (by accident), she should get the copyright? Copyright law is now accommodating other mammalian species apparently.
Except that, by his own account, Slater specifically did NOT want these photos to be taken. Granted it is necessary that he was there, in that place, at that time … but that is true of everyone in and around every photo ever taken. I - rightly - don’t get copyright whenever I am in the background of someone else’s photos, even though my presence was crucial to the composition of the final image.
Besides, what is this weird idea that it is it necessary that someone have copyright of everything ever made. Slater got really lucky, could have left the photo at CC (or whatever) and on Wiki, and then could gone on to have had a really neat story to tell at dinner parties for the rest of his life. Now he just looks like a churlish dick.
Does the Monkey have a legal guardian?
I thought I knew what my opinion on this matter was, but now I’m not so sure.
Let’s say I’m carrying my camera around, and suddenly I fumble it and drop it on the ground, accidentally causing the shutter to operate. When I retrieve it, I see that I’ve taken a fantastically-framed shot of Katy Perry snogging Joan Rivers that I’d love to sell to the National Enquirer and the Daily Mail. Do I own the copyright? I was in the area intending to take pictures, and deliberately took all the other pictures, but the best one was totally an accident of physics.
Similarly, if I’m taking cute photos of one of my cats, and set the camera down for a moment to scratch her belly, and meanwhile another of my cats knocks it off the table, shooting an incredible “invisible bike” photo of the third cat, can I claim copyright?
If I’ve turned off the auto-lock on my iPad, and left it open in the kitchen, and my cat walks across it activating the video camera just in time to capture Katy Perry and Joan Rivers breaking into my apartment to further their illicit tryst, do I own the video?
It’s not a terribly satisfactory answer to the question you pose; but I suspect that, for all practical purposes, the area of uncertainty is papered over by a strong presumption of authorial agency and intent.
There are arguably many situations where an omniscient (or even more-cognizant-than-available) narrator could discern a lack of authorial agency; but very few have much durable evidence one way or the other and your interest in possessing the copyright is strong, immediate, and (most of the time) accurate, so the question would never be considered.
The monkey business appears to be special in that the lack of authorial agency is so closely linked to the work, so publicly documented in the photographer’s own accounts, (and there’s an easily anthropomorphized monkey involved, not an inhuman accident of mechanics or a lungfish, which makes it much easier to feel that agency lay elsewhere, rather than simply being absent…). It’s probably quite common in being accidental; but rather unusual in being visibly so, and in the appeal and interest of the work being substantially connected to the accident.
Sure, it’s almost the same, except that in that sort of situation there is human control over when the shutter is being activated. With a proximity sensor, the animal essentially makes the decision of when to trip the shutter. And there are also potential points of difference depending on whether I simply let the camera drift randomly through the water, or if I have attached it to something that I control. But I think the balloon example also raises some interesting questions and isn’t as straightforward as it initially seems.
But if the balloon owner does have copyright, it’s not because he thought up the idea. Copyright protects expressions, not ideas. He might be able to patent his method for obtaining balloon photographs, but it’s not something you can copyright. I’m not sure that simply having an idea to launch a camera attached to a balloon is enough to be considered the author of the resulting random imagery.
Another interesting question would be about the video in which a fox stole the camera while it was rolling. The camera owner clearly didn’t want the fox to take it, but he also was the one who started recording before the fox arrived. Does the author of the video change when the fox takes the camera, and does the camera owner then lose copyright? Are stills from the video in the public domain for the period after the fox took the camera?
No, that’s actually not why. Contributions to motion pictures are explicitly considered work for hire (when accompanied by an appropriate written agreement), and this is why the studio typically owns the copyright, and not the director, cameraman, actors, or anyone else.
Basically, what the camera owner should now do is claim that he lied about how the picture was created because saying the monkey stole it sounded much more interesting and he wanted lots of publicity. He should now say that it was still a selfie, but that he left his camera out hoping that the moneys would take some pictures.
The selection of and preparation of lenses, camera, enclosure, camera settings, potentially film stock, and specialized triggers or floats etc; with the specific goal of capturing an legible/aesthetically good photograph by sending a camera bobbing through the ocean represents the creative control in your example. Even if the settings necessary turned out to “auto” or presets of some sort. So you could certainly claim a copyright, you might have to argue for it or back it up in court but the justification is there.
But the photog here? All his intent, and creative agency were expressed in regards to another photograph entirely. A monkey grabbing the camera later and (from the sounds of the original story) setting off the burst feature is just happenstance. The fact that any of the photos were any good (or even clear enough to make out) is pure luck.
Is the phrase “and executed it” really that difficult to understand?
Sure, because that’s the way the system has been arranged. They could explicitly be considered something else, if we chose to arrange the system differently.
Yup, and the interesting bit of this case is, as you note, that Slater explicitly rejected authorial agency and intent. But he’s still trying to claim copyright anyway.
I think this is really key. If the photographer had lost his camera to an octopus, would we be having this conversation?
This is pretty cruel on the part of Wikimedia. The photographer should certainly own rights to the photograph. He bought the camera, traveled to a place with a monkey, and created the situation where this picture could be created. This is top down strong arming of an artist, and it makes an already difficult living even harder to earn.
