Of Macaques and Men: [obligatory monkey pun subtitle here]

Have you heard the one about the monkey who stole the wildlife photographer’s camera and took a picture of herself? And then Wikipedia posted the photo, without asking anyone’s permission to do so, claiming that the photograph is in the public domain, while the photographer—the man, not the monkey—objects, claiming ownership because, among other things, the monkey used his camera.

MDB

Man or monkey?

You hadn’t heard? Well, now you’re up to speed. But notwithstanding the grin on the macaque’s mug in the embattled photo, this isn’t a joke. British shutterbug David Slater has made several requests that Wikimedia, the not-for-profit entity that runs Wikipedia, remove the photograph from its Wikimedia Commons repository of images. Each request has been met with a refusal and a reiteration of Wikimedia’s position on the matter that Slater is not the author or copyright owner of the photo.

No relation.

No relation.

Wikimedia’s stated rationale is that “as the work of a nonhuman animal, [the photograph] has no human author in whom copyright is vested.” And therefore the photo was in the public domain ab initio. At least one lawyer agrees with Wikipedia. According to a Law360 article, Brad Newberg, a partner at Reed Smith LLP, opined: “Everything regarding copyright is about who put the creative elements into the end work, not who supplied the camera.” Newberg said that Slater would only own the copyright if he manipulated the photo in postproduction, according to the Law360 piece. (“However, Newberg said, everything he’s heard about the photo suggests the basic premise that the monkey took a selfie and then Slater shared it with the world without creative post-manipulation.”)

This author is of the opinion that some legal professionals don’t know enough about photography. Sure, even professional photographers manipulate their work after the fact, but the more work one does before pressing the shutter button, the less one has to do in the darkroom or on the computer. And, judging from the quality of the photo in question, Slater (and presumably not the macaque) did a lot of work beforehand, because it is a terrific picture.

And yet Slater gets no credit for that, legally speaking. Something isn’t right here.

“I’ve told [Wikimedia] it’s not public domain,” Slater has said. “They’ve got no right to say that it’s public domain. A monkey pressed the button, but I did all the setting up.” Yet Wikimedia and at least one lawyer would have it that the monkey is the author—but being nonhuman can not be the copyright owner, and so there is no owner.

Is it possible that Wikimedia and some lawyers have not heard of joint authorship? It’s in the Copyright Act. According to 17 U.S.C. § 201(a):

Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are co[ö]wners of copyright in the work.

Granted, Section 101 provides that “[a] ‘joint work’ is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole,” but I suspect that, absent evidence of the monkey’s intentions at the relevant place and time (Indonesia, 2011), we can attribute to her at least a willingness to collaborate, without doing much violence to the law. And then we can find that because the monkey isn’t human she therefore can not be a copyright owner, leaving her putative joint owner the sole owner.

This legal fiction is surely preferable to the alternative, which denies Slater the full benefits of his efforts. The monkey did the smallest part of the work. The man deserves the reward.

Now, orange you glad I didn’t say “banana”?

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12 Responses to “Of Macaques and Men: [obligatory monkey pun subtitle here]”

  1. August 8, 2014 at 12:36 am #

    Bad facts should not lead to bad law. Which is to say that while Mr. Slater may lose out in this case, I think the law here is both clear and correct. You’re making the classic “sweat of the brow” argument, which doesn’t hold water under US Copyright law.

    You’re correct that there are a lot of technical decisions that lead up to a successful (or unsuccessful) creative effort. But those technical decisions — as painstaking and laborious and expensive as they may be — should not give rise to copyright protection.

    Admittedly, delineating exactly what constitutes a “creative” contribution versus one merely technical is difficult and perhaps scary, but it is unfortunately necessary. And while the choice of equipment, choice of settings on the equipment, and even the effort of schlepping out to wherever macaques spend their time are all significant contributions, they are at the end of the day essentially _technical_ contributions.

    (You could push back on some of the settings – depth of field (as determined by f/stop) and exposure issues could be artistic choices, but in this context I would claim they’re inadequate and certainly not at the core of the creative contribution.)

    Two counter-examples should be sufficient to make the point clear:

    1) Take out the Macaque and posit a *human* photographer named Mack. If Mack had picked up Slater’s camera and taken a series of photographs, including a ‘selfie,’ I don’t think anyone would be arguing that Slater should hold copyright in that photograph. Fine, Mack might be rude, might even have broken the law; in certain circumstances Slater might even have some sort of legal claim against Mack. But it seems obvious to me that the copyright would — and *should* — vest in Mack.

    2) If the monkey had accidentally *changed* some of the settings — accidentally hit a button to change the exposure settings, or bumped a light — I don’t see how that should change the outcome. Yet on your rationale it needs must, because the monkey is no longer free-riding off Slater’s hard work.

    Your idea about joint authorship is — and I’m sorry to be so blunt — an astonishingly bad one. Let’s assume, for example, that _lighting_ is part of the hard work that Slater (or someone in his position) would have done in preparing for the photograph. If I then go to an outdoor event — professionally lit — and take a photograph, am I now a joint author in that photograph with the lighting designer? the gaffers? the owner of the venue? If the various settings and adjustments made to the camera satisfy the joint authorship requirement, and I use a camera “out of the box,” without changing or adjusting those, am I now a joint author in those photographs with the camera manufacturer? the technician who set up the camera? the engineer/marketing person who decided what the default settings should be?

    At the end of the day, your premise is well-intentioned, but faulty, and so brings you to a faulty conclusion. Setting aside all of the technical preparation, the heart of the art of the photographer is hitting that shutter button at exactly the right moment — framing and lighting and composition and f/stop and exposure and white balance and whatever other technical preparations all coming together in an erstwhile-literal alchemy that makes permanent something transcendent and ephemeral. Hitting the button at just the right moment is the primary act for which we reward the photographer.

    You write, “The monkey did the smallest part of the work. The man deserves the reward” But to say that the monkey did the smallest part of the work is to make light of the work of photographers everywhere.

  2. August 9, 2014 at 3:13 pm #

    Not only am I not making the “classic ‘sweat of the brow’ argument,” I find it—to borrow your word—astonishing how many lawyers are seemingly forgetting that the classic “sweat of the brow” argument is actually the “[mere] sweat of the brow” argument. That is, copyright protects works of sufficient creativity, as opposed to works that are merely the result of noncreative effort, no matter how substantial that effort.

    My argument is that the work that Slater did to prepare to take photographs—at the scene, mind you, at the time, and with the camera; not in traveling to Indonesia—is just such creative work, not merely effort. Slater was not stacking boxes—or listing names in alphabetical order. He was preparing to take a photograph—and, to that end, not simply affixing his lens to his camera body and turning the device on. I can’t say just what Slater did to prepare to take wildlife photographs that day, at that location—but he can, and if he gets the chance to describe what he did, under oath, I suspect a court might find that it, taken together, is more akin to taking a photograph than to compiling names and numbers for a phone book—the efforts that I remember were at issue in Feist—the case that gave us (or, rather, overruled) the (mere) sweat of the brow doctrine—something many lawyers and laypersons seem to be forgetting or ignoring, in order to jump on the bandwagon gaining steam here, to mix a metaphor.

    Your counter-examples are interesting. Here is a counter-counter-example:

    A wildlife photographer sets up his equipment in a jungle. He prepares his camera to take photographs of animals. He mounts his camera on a tripod. He connects to the camera a motion sensor that will trigger the shutter when something trips the sensor. He then goes behind a bush a takes a nap, exhausted from all the work he has done to set up his camera equipment. His brow is decidedly sweaty. While he naps, a lion, a tiger, a bear, or Bigfoot comes by, tripping the sensor and causing the camera to take a photograph. Is that photograph in the pubic domain because the photographer did not depress the shutter button? I think not.

    Now, I suppose I owe you, and perhaps others, an apology with regard to my astonishingly bad point about joint authorship. I wasn’t serious. Really, I wasn’t. It was a secondary thought I’d had. It amused me, so I thought it would amuse others who would realize that I was just… no, I won’t say what you expect here. I’ll say “being silly.” I would not expect any court to find that the macaque who stole Slater’s camera had the state of mind required by statute to be ruled a joint author (which would, in my whimsical theory, permit Slater himself to be found to be a joint author, which would be enough for him to be the copyright owner). In all seriousness, however, I don’t understand your comment that my “sayi[ng] that the monkey did the smallest part of the work is to make light of the work of photographers everywhere.” I was trying to convey just the opposite: That being able to push a button is not what makes a photographer.

    In any event, I’m pleased to report that I am not alone in opining against the tide. There’s a discussion going on over at DuetsBlog, where Steve Baird did me the honor of mentioning me in his considered blog post on this matter. (On the other hand, Steve and at least one commenter show zero reservation when it comes to making monkey puns. You’ve been warned.)

  3. Glenn Langford
    August 11, 2014 at 3:35 am #

    Had Slater willingly given the monkey the camera, this could be seen as a deliberate part of the creative act. Backtracking (so to speak), one could surely assert that Slater's whole premise for the trip was to capture images, of which this is one. Absent involvement from any other humans, is he not the sole author of all images captured on this trip?

  4. August 11, 2014 at 6:06 am #

    I read the DuetsBlog post, and I think that Steve Baird has the right of both of us. Sweat-of-the-brow (mere or otherwise) is the wrong way to look at this case; the core question is amanuensis, and as a corollary to that, Slater’s intention.

    Slater’s *apparent* argument (Steve frames Slater’s narrative as an argument; it’s not clear to me that it is intended as such on Slater’s own website, but it’s fair to read it that way for our purposes) — and yours in the main post — were heavily reliant on the idea that the value of Slater’s efforts in _preparing_ for “the shot” should give Slater rights in the actual shot. My argument (and presumably the argument of the “countless” other lawyers looking to Feist) was that Slater’s efforts in preparing for the shot were insufficient to do so.

    I think now that we were *both* making a false distinction between “setting up for the shot” and “the shot.” (At my most generous, I will grant you that your argument could be seen as directed towards blurring that line, but even then you were beginning from a premise that they are distinct.)

    By our two counter-examples, we may have backed into what Steve Baird saw at the beginning. To wit, that the amanuensis question is the real question, and the distinction between “preparing for the shot” and “the shot” itself is not actually relevant in this scenario.

    Rather, the question is properly framed as one of amanuensis; is the macaque (in the instant case) or Mack the interloper (in my example) or the lion, tiger, or bear an amanuensis for the photographer. (I elide Big Foot on purpose, see below.)

    And to answer that, I think the question shifts to the putative author’s intention; possibly with some analysis of the intention (or intentionality) of the supposed amanuensis.

    In my example, the owner of the camera had no intention that Mack steal and/or use the camera. All of the preparation — including the arguably artistic contributions (see below) — are cut off by the failure of the photographers intention to have Mack be his amanuensis _as well as _ Mack’s presumed intention that he (Mack) be the sole “author” of the work. (“Presumed intention” because we impute to Mack an ability to form cognizable intention, and absent an expression to the contrary we assume he was acting for himself.)

    In your example, the photographer’s intention is clear that the various exciting beasts (and/or the motion sensor mechanism) act as the photographer’s amanuensis… “I cannot be here all the time, or react quickly enough, or withstand this environment, or fail to affect this environment… so here, mr. motion sensor, mr. lion/tiger/bear, you guys get together and figure out IN MY STEAD when exactly to click the shutter.” It is also equally clear that neither the motion sensor nor the animals have the ability to form an intention contrary to the photographer’s.

    (To the animal activists: I wish you peace but please leave me out of it. To the i-want-to-believers: notice I left Big Foot out, because I have no opinion as to his ability to form an intention. To our future robot overlords: I might be wrong about the motion sensor.)

    It works out quite elegantly, actually. On the one side, I think you’ll agree that a lot of what Slater is pointing to (see caveat above) in order to support his claim of right is, in fact, MERE sweat of the brow, completely insufficient to give Slater rights as an author. For instance, the described efforts involved in getting to the place, making friends with the monkeys, and chasing down the camera when it was first stolen — these are all entirely insufficient to give rise to copyright. (Note, per the description, it was Slater’s assistant who actually chased down the camera the first time — but no one has argued that the assistant has rights. That’s probably because we all recognize that chasing down a monkey-swiped camera is a sweat-of-the-brow contribution, though there’s also an amanuensis argument to be made.)

    On the other side, I can concede that efforts such as “very wide angle lens, settings configured such as predictive autofocus, motorwind, even a flashgun,” while fairly technical, do seem more like artistic/creative contribution and decision-making than they do MERE sweat of the brow. And I don’t have to go to the next (very difficult and troublesome) step of deciding where exactly that line falls.

    The question in the instant case becomes much simpler — was it Slater’s intention that the macaque be the mere mechanism for taking the picture? And that’s where reasonable minds may differ.

    Reading Slater’s narrative, I don’t see that his intention was that the macaques operate as his agent — his intention seems to be that he be prepared to capture an image himself: “to give me a chance of a facial close up if they were to approach again for a play.” I read that to imply that Slater had some mechanism for triggering the shutter at a distance (since he moves away to allow the monkeys to come in and play), and so the intention was that he (Slater) take the shot and not the monkey.

    On the other hand, you or Steve Baird — and certainly Slater himself — could argue that his intention was precisely that the monkeys somehow trigger the shot. In which case you’ve got your amanuensis argument, and Slater has the rights.

    I see two complicating factors, one of evidence and one of broader scope. As an evidentiary matter, there’s the question of Slater’s perception of the monkey’s intentionality. That is, on a purely legal level, I’m happy to ignore the macaque’s intention, and I think that at least for copyright purposes that’s the right course. Slater himself, however, seems to give weight to the monkey’s intention, and as a matter of evidence that’s going to undermine a claim by Slater that he wanted the monkey to act as a mechanism for Slater’s own will.

    A broader question is the timing and scope of the intention necessary. Does the intention of the photographer have to be specific to the particular photograph? Where and how can the intention be shifted? A generalized intention seems uncontroversial; the motion-sensor photographer clearly intends that the animal/motion-sensor combo be his or her amanuensis for all the images captured during the nap. But on the flipside of that, how specific should (or can) the intention be? Could Slater, for instance, argue that he did NOT intend for the macaque to be his amanuensis *at first,* but once he heard the first shutter click and realized that the monkeys could trigger the shutter without his direct input, his intention changed? That (to me) seems both contrived and dangerously close to undermining the whole solution, which outcome troubles me.

    • August 12, 2014 at 9:48 am #

      Next time you want to write something this good (and this big), Ben, let me know and we’ll put it up as a guest post!

  5. Sammy Finkelman
    August 12, 2014 at 4:46 pm #

    Suppose a picture had been taken entirely by accident – a camera fell, and the shutter was snapped, and you got a good picture that maybe could never have bene taken very easily on purpose..

    There’d be no copyright in the picture?

    The point here is that Slater made the photo available.

    • August 12, 2014 at 5:05 pm #

      Lots of creative works got that way by a process that at least included a component of randomness — sometimes more than a little.

      Still, “making the photo available” can’t be good enough for copyright; that’s just “sweat of the brow.”

      Does the difference come in where it’s another living creature that was the agency by which the shutter was pressed? If it were a squirrel would we feel that way? If not, does this distinction stand a line drawn at “primates”?

  6. Anonymous
    August 13, 2014 at 5:57 pm #

    Barbara Gregson, a well known clearance expert has asked, what if the photographer fed the monkey, could the work then be considered "a work for hire?"

  7. Anonymous
    August 13, 2014 at 6:00 pm #

    He may not have a registered copyright, but he does own the negative and hence should have a common law copyright. If his copyright fails, then no museum should be able to claim copyright to historical work they may own but did not create.

    • August 13, 2014 at 5:21 pm #

      Registration is not necessary for copyright protection in the United States. And ownership of the negative does not give one ownership of the copyright in the photo produced by printing from the negative any more than owning a book makes one the copyright owner of the work displayed in the book, under common law or statutory law. (In any event, Slater was likely not shooting film, so there are no negatives.)

      Do museums claim copyright in works that they own but did not create? I doubt that they do, in the United States. A museum might own the copyright in, say, a book that includes photographs of works (e.g., statues, tapestries, suits of armor, musical instruments, stuffed animals, etc.) in its collection and accompanying text, but that copyright would cover only the content of the book (that doesn’t belong to individual contributors of content, such as—yes—the photographs if taken by independent contractors).

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