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And, significantly, it is not the case that we must use every image that we legally may, or arguably may; surely we are free to consider what is fair and ethical, and not merely what is lawful, in making these decisions.
Very well-said; I do recall that Slater said that he was previously making some money off the photograph before the debacle. There's really no point forcing a sole photographer to fight a court battle over a scenario that will likely have no impact on copyright use on Wikipedia at all. (Not to mention that the photograph itself isn't exactly essential) It just seems like the Wikimedia Foundation pushing its weight around and ignoring the human in the situation. Opencooper (talk) 19:58, 24 January 2016 (UTC)
(ec) There are various things that can be said:
- Firstly this is a funny and newsworthy story.
- Secondly (AIUI) Slater did initially claim that the photographs had no creative input from him, and the Commons decision was made on this basis.
- Thirdly that regardless of Slater's claim of lost income, he has doubtless gained an inordinate amount of publicity, and indeed may well find or have found people prepared to pay for "monkey selfie" stories and interviews which would otherwise never have happened.
- Fourthly that Commons would do well, ethically, to mark the images as "copyright contested" at the very least. They can still be used on "monkey selfie" under US law as fair use, and probably under British law too. I doubt that they are used or any other purpose on WMF projects.
All the best: Rich Farmbrough, 20:02, 24 January 2016 (UTC).
- I wonder if this makes a difference to Slater's position. "Until I hear from the monkey's lawyers, I will stick to the belief that I own the copyright"….
All the best: Rich Farmbrough, 20:50, 24 January 2016 (UTC).
- I wonder if this makes a difference to Slater's position. "Until I hear from the monkey's lawyers, I will stick to the belief that I own the copyright"….
- Once again, it did amuse me to no end about the press reaction to the latest judgement. A complete and utter misunderstanding about what the judgement, or indeed the case, stated. Instead of reporting that the court handed down a judgement saying that a monkey couldn't hold copyright, most media did a half-assed job and someone came to the conclusion that therefore the copyright was therefore held by Slater. This wasn't what was said at all, only that it wasn't held by a monkey. I'm glad someone addressed this misconception, as it isn't in the media's best interest to report "the status quo remained the same". Miyagawa (talk) 20:20, 24 January 2016 (UTC)
- (1) acquired a camera, (2) studied photography and become a photographer, (3) decided to use the camera to take photographs of wildlife,
- None of this are really relevant to copyright
- (4) decided to bring the camera to a particular location in Indonesia on a particular date,
- Possible but I'm not sure how significant the position of the sun is in this case.
- (5) selected a particular image or creature to be photographed,
- He didn't. There are a bunch of monkeys and at least 2 animal species in the photo series.
- (6) set up, configured, or adjusted any of the settings on the camera,
- That argument needs to be handled with care or you end up with canon holding the copyright. If you look at these two images [1][2] its possible that they were adjusted in post but to me it looks like the camera firmware trying to adjust to a large black object entering the frame from the right.
- (7) had any knowledge that if he pressed the button, the result would be a photograph, much less (8) had any knowledge that if he pressed the button, the result would be a photograph of himself, or even (9) knew what a camera is, what a button is, or what a photograph is.
- These create the problem that it would suggest babies or people with limited knowledge wouldn't hold the copyright on photos they took.
- FWIW I'd argue it in terms of the creativity involved in post. The images have been cropped. Probably rotated and if he didn't play we the colour curves Mr slater would be rather an unusual photographer. Although if he did have the camera set to motorwind (normally motordrive isn't it?) as his lawyer suggests its possible the camera wasn't shooting in raw which implies less editing. And yes this was the logic under which I deleted the image in the first place.
- In terms of deleting it because he asked he's not doing it to be annoying and we have other images in which case I tend to lean in the direction of deleting the image.©Geni (talk) 21:39, 24 January 2016 (UTC)
- They took "hundreds of shots" - which supports the "selection" argument but undermines the "settings" argument.
- I am sure Slater is not doing it "to be annoying" but I am not so sure that he's not doing it for the publicity.
- All the best: Rich Farmbrough, 02:01, 25 January 2016 (UTC).
I blogged about this issue, from my standpoint as both a photographer and animal rights activist, after reading about it in the Signpost last year. I still believe that neither Slater nor PETA (the group filing the lawsuit, which I basically detest and have no affiliation with) were acting entirely in good faith. But the reasoning in this article for ultimately removing the photos from Commons is reasonable and persuasive. Funcrunch (talk) 21:41, 24 January 2016 (UTC)
- Thank you for sharing that. Like you, I'm no fan of PETA, but the tone of the Signpost article left an unpleasant taste in my mouth. Why Mr Matetsky could not write the same piece without the gleeful mockery is a mystery to me. Josh Milburn (talk) 22:12, 24 January 2016 (UTC)
- @Josh Milburn: I'm holding off on responding to most comments here and in my userspace for a few days, until I can reply to all the thoughts in an organized manner, but I did want to address this by saying that no "gleeful mockery" was intended. I do think the Naruto lawsuit was misguided and its outcome utterly predictable, but frankly what I wrote about it was probably on the bland side compared to a lot of the commentary elsewhere (and we still haven't seen the judge's written opinion). Newyorkbrad (talk) 16:55, 25 January 2016 (UTC)
- @Newyorkbrad: I can agree (assuming, which I think is an open question, that they hoped to win) that PETA's actions were misguided and the outcome predictable. That said, I'm not really sure what you could have intended other than mockery by writing the following: "Indeed, a defendant's brief in the case put it beautifully: The words 'a monkey, an animal-rights organization and a primatologist walk into federal court to sue for infringement of the monkey’s claimed copyright' belong in a comedy sketch, not a copyright action; and 'monkey see, monkey sue' is not good law." Josh Milburn (talk) 17:27, 25 January 2016 (UTC)
- @Josh Milburn: I'm holding off on responding to most comments here and in my userspace for a few days, until I can reply to all the thoughts in an organized manner, but I did want to address this by saying that no "gleeful mockery" was intended. I do think the Naruto lawsuit was misguided and its outcome utterly predictable, but frankly what I wrote about it was probably on the bland side compared to a lot of the commentary elsewhere (and we still haven't seen the judge's written opinion). Newyorkbrad (talk) 16:55, 25 January 2016 (UTC)
This is spot-on correct and, if anything, is on the conservative side. This is no different than a live sporting event. Slater rented the venue and photographed wildlife with the explicit intent of creating photographs for his business. If this was at a football match or baseball game and the monkey pressed the record button, the rights to the recording are not magically transformed into "public domain." The match in question is unscripted just like the photo in dispute but there is no dispute that the account of the match or game belongs to the team or league regardless of who presses the record button. "My monkey took the photo so that means I have the right to broadly copy and release it" is not going to fly and I expect the Premier League, MLB and NFL will all agree that venue and intent are much more important than outcome. Their amicus briefs will strongly favor the rights of Mr. Slater to control the intellectual property that resulted from his endeavor and not the "public domain" argument put forth by Commons. A "monkey defense" will be quashed as the monkey is not the one responsible for unlicensed distribution. --DHeyward (talk) 04:15, 25 January 2016 (UTC)
- I don't think your scenario works. If your monkey takes a photo of a copyrighted performance, then the copyright of the performance is still in place. Neither you nor the monkey have the rights to the performance. Unless the copyrighted performance appears only de minimis in your monkey's photo, then neither you nor the monkey can copy it or release it at all. WhatamIdoing (talk) 03:17, 29 January 2016 (UTC)
- @WhatamIdoing: you made my point. What makes it a "copyrighted performance" when it's an unscripted live sporting event? Those that argue that "monkey selfie" can't be copyrighted miss the fact that the entire venue was in fact hired and commissioned. No one contests that Major League Baseball owns the copyright to its unscripted games (I suppose it's a part of work for hire law). The same is true for animal circus acts done under the umbrella of Barnum and Bailey. These are easily recognized copyright holders that have no creative input themselves yet through their commission, creative works were made and they hold the copyright regardless of what transpires. Mr. Slater rented the zoo for his photo shoot. If part of that is a monkey pushing a button, it doesn't change the underlying commission just as it doesn't change the nature of an MLB copyright or a Barnum and Bailey copyright. Mr. Slater's rights as copyright holder are just as strong as MLB's or Barnum and Bailey's claim of copyright. I can't imagine any media producing company that relies on "work for hire" copyright law being sympathetic to WMF's "public domain" claim because of what transpired in a commissioned venue. MLB, NFL, NBA, Premier League, etc make their money through copyrighting a "work for hire" that is unscripted, undirected and devoid of the copyright holders creativity in venues they rent - just as Mr. Slater does. --DHeyward (talk) 06:37, 29 January 2016 (UTC)
- I don't know about that one. In National Basketball Ass'n v. Motorola, Inc. the United States Court of Appeals for the Second Circuit "noted that the broadcasts of the NBA games, not the games themselves, are entitled to copyright protection." I expect they'd say the same about MLB games. Anomie⚔ 13:43, 29 January 2016 (UTC)
- @WhatamIdoing: you made my point. What makes it a "copyrighted performance" when it's an unscripted live sporting event? Those that argue that "monkey selfie" can't be copyrighted miss the fact that the entire venue was in fact hired and commissioned. No one contests that Major League Baseball owns the copyright to its unscripted games (I suppose it's a part of work for hire law). The same is true for animal circus acts done under the umbrella of Barnum and Bailey. These are easily recognized copyright holders that have no creative input themselves yet through their commission, creative works were made and they hold the copyright regardless of what transpires. Mr. Slater rented the zoo for his photo shoot. If part of that is a monkey pushing a button, it doesn't change the underlying commission just as it doesn't change the nature of an MLB copyright or a Barnum and Bailey copyright. Mr. Slater's rights as copyright holder are just as strong as MLB's or Barnum and Bailey's claim of copyright. I can't imagine any media producing company that relies on "work for hire" copyright law being sympathetic to WMF's "public domain" claim because of what transpired in a commissioned venue. MLB, NFL, NBA, Premier League, etc make their money through copyrighting a "work for hire" that is unscripted, undirected and devoid of the copyright holders creativity in venues they rent - just as Mr. Slater does. --DHeyward (talk) 06:37, 29 January 2016 (UTC)
- That's the fixed form (or a fixed form). The lesson is that MLB owns it, not the person that pushed record on the cameras commissioned by MLB to record it, not the director or producer or any other entity. MLB's rights to the recording are not void regardless of whether the camera operator was a human, an animal or a robot. The cameraman does not own it as he was hired as part of the venue. --DHeyward (talk) 20:32, 30 January 2016 (UTC)
- Wasn't your point that someone else unaffiliated with MLB couldn't record the game and have copyright in their own recording because the game itself was somehow copyrighted? Now you're arguing work-for-hire, which no one has been discussing here. Anomie⚔ 15:34, 1 February 2016 (UTC)
- It's still my point that MLB is the only entity with copyright. Work for hire comes into play only because they are authorized/employed by MLB to record the account of the game and they have artistic input into which camera to use, where to point the camera, etc. You aren't arguing that the person that presses record on the DVR or films the game in the stadium has copyright, are you? Listen to sports talk radio show or ESPN during the SuperBowl. You'll get updates but no one except the media outlet contracted with the NFL will be giving play-by-play. They can't watch the game on TV and a play-by-play account because it's copyrighted. --DHeyward (talk) 22:51, 1 February 2016 (UTC)
- Wasn't your point that someone else unaffiliated with MLB couldn't record the game and have copyright in their own recording because the game itself was somehow copyrighted? Now you're arguing work-for-hire, which no one has been discussing here. Anomie⚔ 15:34, 1 February 2016 (UTC)
- That's the fixed form (or a fixed form). The lesson is that MLB owns it, not the person that pushed record on the cameras commissioned by MLB to record it, not the director or producer or any other entity. MLB's rights to the recording are not void regardless of whether the camera operator was a human, an animal or a robot. The cameraman does not own it as he was hired as part of the venue. --DHeyward (talk) 20:32, 30 January 2016 (UTC)
- Being scripted isn't a necessary precondition for copyright status; it if were, then an improv performance couldn't be copyrighted. A circus performance is indeed copyrighted, and they are in fact tightly scripted.
- The legal status of sporting events may depend upon country; I intentionally said "performance" rather than "game" ("If your monkey takes a photo of a copyrighted performance...") because I'm uncertain about your assertion that everything about a sporting event is copyrightable. Distributing photos from an American sporting event might be a straightforward (ticket-based) contract violation rather than a copyright issue. WhatamIdoing (talk) 16:22, 29 January 2016 (UTC)
- It's copyrighted as soon as it's in a fixed form. Whether the animals follow the script or not is irrelevant. It's copyrighted by the commissioning body that paid to produce it regardless of how creative the animals in the show get. The entire claim that the monkey selfie is public domain is that the elements that make it copyrightable were created solely by the monkey. Yet, it's fairly obvious that copyright copyright is extended to entities that commission works regardless of how much input they have on creativity. That copyright exists whether the camera operator is a human, an animal or robot. Slater commissioned the zoo for his exclusive use to exclusively observe the monkeys. --DHeyward (talk) 20:32, 30 January 2016 (UTC)
- Err, just because Slater may have rented the zoo doesn't mean he automatically owns the copyright to anything that any other party might do on the premises. Even if that other party is a monkey. By your logic, the photos taken at a wedding would be owned by whoever rented the hall, but then why does the contract with the photographer specifically lay out the terms of the work-for-hire relationship if the renter of the hall already owns the copyright? Anomie⚔ 15:39, 1 February 2016 (UTC)
- Speaking as a photographer who has shot weddings professionally: In the USA, the photographer owns the copyright on the photos they take unless they specifically waive that right in a contract. i.e. it's not automatically "work for hire". Owning that copyright doesn't mean the photographer can do whatever they want with the photos, however. In order to use photos of the happy couple to promote their work, or in order to license the photos for commercial or unrestricted use (directly or through a stock agency), they need to get a signed model release. Some photographers build this into their contract.
- I don't what the laws are about copyright in other countries. But as I mentioned elsewhere in this discussion, if the photos are shot on private property, the property owner might also be able to require a property release to be signed in order for the photos to be used for commercial or promotional work. Funcrunch (talk) 16:50, 1 February 2016 (UTC)
- Firstly, a monkey is not a "party" to anything. They are property of the zoo. Slater rented the zoo and had rights to photograph the animals and it was exclusive. How he obtained the photos is largely irrelevant (high speed, multi-shot, robot, timer, motion sensor, assistant, or "monkey"). Secondly, a wedding photography contract can specify a number of things including payment. It's presumed though, if the photographer is paid to produce photos of the guests, the copyrights is held by the person who paid - whether the photographer has to provide the photographs in specified format is different than who owns the copyright and they would likely be infringing copyright if they used pictures that were paid for by another party. The person working the center field camera for Fox Sports does not have a claim to any copyright of the game, even if the camera catches something eclectic. A contract can spell out different terms just as an employment contract can specify terms, but the presumption is that the employer owns the copyright. A software engineer hired by Microsoft and writes code in exchange for salary is presumed to give up copyright to his employer. The copyright held by the employer restricts how the employee can use it and restricts how others can use it. The point of all of this is that Slater paid for the rights to record the monkeys in whatever fashion he chose. He is the only entity that can claim copyright (monkeys can't claim it, can't hold it). Arguing that the monkey is a "party" to a copyright claim has already been tossed. Slater, however, has as strong a claim to the copyright just as MLB does to a film of a game (e.g. MLB's claim of copyright trumps even a human beings claim when the human being arguably has artistic control - the cameraman and director do not hold any claim of copyright so even weaker claims like "the robot" or "the monkey" have no merit. Now what exactly did MLB do to acquire copyright? Nothing they did was creative or artistic - rather it's about hiring and venue). The outcome of what is photographed and how the photo shoot evolves after Slater has already staged the venue, equipment, settings, etc, is still his property just as filming an unexpected homerun or fan running on the field, or a robotic camera recording a curveball, is the property of MLB - the employees need not "release" it for every game as it's already established law and the venue, robots and animals can't hold copyright. It would be quite the stretch to say an MLB game is public domain without a very strong case being made against such a claim. Certainly the argument "MLB didn't push the record button, it was John Smith in centerfield, so MLB has no rights" would fail. Arguing that the camera operator being a monkey gives a stronger copyright interest to the monkey than a human operator is absurd. The monkey has no more rights than the camera itself, let alone more rights than the human operator. --DHeyward (talk) 22:51, 1 February 2016 (UTC)
- Re "It's presumed though, if the [wedding] photographer is paid to produce photos of the guests, the copyrights is held by the person who paid" - this is a popular misconception in the USA, but it's not true, per my comment above. Though as I said, owning copyright does not mean the photographer can use the photos however they wish. This has nothing to do with Slater (the human), Naruto (the monkey), or major league baseball; I'm just pointing out how copyright of photography actually works in my country. Funcrunch (talk) 01:08, 2 February 2016 (UTC)
- It depends. Ask any photographer for your local newspaper who owns the copyright of the photos they take under employment. It belongs to their employer. Most wedding photographers are freelance, though, and sell a package through a contract that outlines whether it is a work for hire. See US Code 17 U.S.C. § 101 and our article. If your "wedding photo company" had employees, those employees would not enjoy copyright holder status. It also goes more in-depth regarding copyright vs. moral rights. --DHeyward (talk) 03:07, 2 February 2016 (UTC)
- Re "It's presumed though, if the [wedding] photographer is paid to produce photos of the guests, the copyrights is held by the person who paid" - this is a popular misconception in the USA, but it's not true, per my comment above. Though as I said, owning copyright does not mean the photographer can use the photos however they wish. This has nothing to do with Slater (the human), Naruto (the monkey), or major league baseball; I'm just pointing out how copyright of photography actually works in my country. Funcrunch (talk) 01:08, 2 February 2016 (UTC)
- Firstly, a monkey is not a "party" to anything. They are property of the zoo. Slater rented the zoo and had rights to photograph the animals and it was exclusive. How he obtained the photos is largely irrelevant (high speed, multi-shot, robot, timer, motion sensor, assistant, or "monkey"). Secondly, a wedding photography contract can specify a number of things including payment. It's presumed though, if the photographer is paid to produce photos of the guests, the copyrights is held by the person who paid - whether the photographer has to provide the photographs in specified format is different than who owns the copyright and they would likely be infringing copyright if they used pictures that were paid for by another party. The person working the center field camera for Fox Sports does not have a claim to any copyright of the game, even if the camera catches something eclectic. A contract can spell out different terms just as an employment contract can specify terms, but the presumption is that the employer owns the copyright. A software engineer hired by Microsoft and writes code in exchange for salary is presumed to give up copyright to his employer. The copyright held by the employer restricts how the employee can use it and restricts how others can use it. The point of all of this is that Slater paid for the rights to record the monkeys in whatever fashion he chose. He is the only entity that can claim copyright (monkeys can't claim it, can't hold it). Arguing that the monkey is a "party" to a copyright claim has already been tossed. Slater, however, has as strong a claim to the copyright just as MLB does to a film of a game (e.g. MLB's claim of copyright trumps even a human beings claim when the human being arguably has artistic control - the cameraman and director do not hold any claim of copyright so even weaker claims like "the robot" or "the monkey" have no merit. Now what exactly did MLB do to acquire copyright? Nothing they did was creative or artistic - rather it's about hiring and venue). The outcome of what is photographed and how the photo shoot evolves after Slater has already staged the venue, equipment, settings, etc, is still his property just as filming an unexpected homerun or fan running on the field, or a robotic camera recording a curveball, is the property of MLB - the employees need not "release" it for every game as it's already established law and the venue, robots and animals can't hold copyright. It would be quite the stretch to say an MLB game is public domain without a very strong case being made against such a claim. Certainly the argument "MLB didn't push the record button, it was John Smith in centerfield, so MLB has no rights" would fail. Arguing that the camera operator being a monkey gives a stronger copyright interest to the monkey than a human operator is absurd. The monkey has no more rights than the camera itself, let alone more rights than the human operator. --DHeyward (talk) 22:51, 1 February 2016 (UTC)
- Err, just because Slater may have rented the zoo doesn't mean he automatically owns the copyright to anything that any other party might do on the premises. Even if that other party is a monkey. By your logic, the photos taken at a wedding would be owned by whoever rented the hall, but then why does the contract with the photographer specifically lay out the terms of the work-for-hire relationship if the renter of the hall already owns the copyright? Anomie⚔ 15:39, 1 February 2016 (UTC)
- It's copyrighted as soon as it's in a fixed form. Whether the animals follow the script or not is irrelevant. It's copyrighted by the commissioning body that paid to produce it regardless of how creative the animals in the show get. The entire claim that the monkey selfie is public domain is that the elements that make it copyrightable were created solely by the monkey. Yet, it's fairly obvious that copyright copyright is extended to entities that commission works regardless of how much input they have on creativity. That copyright exists whether the camera operator is a human, an animal or robot. Slater commissioned the zoo for his exclusive use to exclusively observe the monkeys. --DHeyward (talk) 20:32, 30 January 2016 (UTC)
This is an excellent article. Combined with the automated harvesting of Flickr images whose creators (possibly inadvertently) posted under CC licenses but never authorised Wikimedia to republish - including many of an obviously personal nature and/or with no encyclopaedic value, there are real issues with the way Wikimedia treats photographers' moral rights. Nick-D (talk) 23:02, 25 January 2016 (UTC)
- "Wikimedia should not be in the business of perpetuating bizarre and unnecessary disputes over rights ownership" We're pretty much stuck in this bizarre dispute no matter what happens. Oiyarbepsy (talk) 05:30, 28 January 2016 (UTC)
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