Monkey Selfies

09 September 2014

Region: Headquarters

If there is one thing most people associated with copyright and images have been doing lately it is not getting involved in discussions about who owns the rights in a photograph taken by a monkey that 'borrowed' a camera and ran off a few shots.

Admittedly, there is an interesting argument to be had about whether the photograph is copyright at all since a macaque is not deemed to be a person capable of owning a copyright. Basically, as the copyright in a photograph belongs initially to 'the person who creates it' (unless taken during the course of employment) and a monkey is not a person, then the monkey is not the owner. Neither, it would seem, is the photographer whose camera was used, David Slater.

Back before the 1988 copyright act came into force, the photographer would probably have owned the copyright because the rule under the previous, 1956, act was that the 'commissioner' owned the rights. This had been taken to come down to who paid for the film. Who pressed the shutter wasn't the issue. While the 1988 act changed the rules for still images it did not do so for movies, known as films under the act whether they were a Hollywood motion picture or something shot on your camera phone. So if David Slater's camera had been a movie camera, he would own the copyright in the resulting footage.

This, to me, remains an unfortunate split, since the equipment used to take a still photograph and that used to shoot a movie can be the same piece of kit and the person doing it can be the same person. If this is likely ever to be an issue for you then I suggest you make it clear, in writing, who owns the rights. It still won't be the monkey.

The American arguments over the macaque selfie also included discussions on creativity, since (to over-simplify) a creative step is required under American law whereas UK law asks for the work to be original. After all, how much creativity is involved in pressing the shutter of a camera as compared to the art of a Rembrant (famous for a lifetime of selfies, and a few other things)?

Actually, I can argue, quite a lot. If you take a photograph then you have a large number of variables to contend with. I worked it out, and a photographer  has to make choices in eleven dimensions ...

       * the three dimensions of space for position

       * the three dimensions of orientation for direction of shooting (pitch, roll and yaw)

       * the dimension of perspective and framing (choice of focal length)

       * the dimension of time (when to press the shutter)

       * the dimension of duration (how long is the exposure)

       * the dimension of focus (including depth of field)

       * the dimension of spectrum (what wavelengths are recorded and how they're balanced/filtered)

Admittedly, there is more to creativity than choices, but undoubtedly the choices an artist makes are a significant part of that creativity. What do you think?

Andy Finney is an RPS member and also writes for http://www.infrared100.org/.


Image © Heather Allen.  Heather is a member based in the Florida area of America and much of her work is focused on the fantastic environment that surrounds her home. This picture is from the album Zoo Life. To see more examples of Heather's work click here

Comments (8)

 
Andy Finney
01 April 2015

Emily, my comment about educational institutions does need some explaining. Despite what many in education used to think, there isn't a blanket copyright exception for education. Most educational institutions have licences that allow copying for use in classes, and this could seem to be a blanket permission if you were not aware of the licence.

There are a number of 'permitted acts' or exceptions which are things you are allowed to do without infringing copyright. They are known in the UK as 'fair dealing' and the clue is in the name, they have to be fair to the copyright owner, appropriate and not excessive. So no copying of an entire book if a paragraph will do.

Fair dealing for private study and research is one exception, which applies to an individual copying something for their own use and does not allow copying for someone else of making of multiple copies. Anything other than music can be copied for use in an examination and there is also an exception for criticism and review. I've always assumed this latter exception is to prevent suppression of negative reviews. It can refer to review of the work itself or what it idea it represents, such as a celebrity photograph representing a particular kind of journalism.

As always, the devil is in the detail and my note is very broad brush and not legal advice. I found a good place to start if educational use of copyright material is of interest is the advice available on university web sites for their staff. Here is one from de Montfort University in Leicester discussing artistic works, which includes photographs: http://www.library.dmu.ac.uk/Support/Copyright/index.php?page=427

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Emily Mathisen
19 December 2014

"However, another permitted act is criticism and review, and along with an exception for some educational purposes, this is what usually allows lecturers to illustrate their presentations ." Could you expand on this Andy as I found this really interesting - does that mean some educational institutions can bypass copyright rules in lectures etc.?

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Rexbluei
23 September 2014

I hope that Rexbluei will take his or her camera again.
:-)
I think every photographer has to be happy with where they draw the line of acceptable behaviour concerning copyright. I don't often worry about copyright when I point my camera at things I want to photograph.
Rex

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Andy Finney
22 September 2014

The comment about processing a RAW file makes an interesting point. Under UK law (but probably not US law) doing so would create a new copyright, rather than 'modify' any existing one. An example that comes to mind is the relationship between a negative and the print made from it; famously (by Ansel Adams if memory serves) likened to the relationship between a music score and a musical performance. Would an American court say that Adams applied creativity to his printing? I would hope so.

I hope that Rexbluei will take his or her camera again. There are exceptions to copyright (known as 'permitted acts' in the legislation) to allow you to take photographs of buildings or statues in a public place and also that cover incidental inclusion of copyright works in your photographs.

The story about the lecturer who could not illustrate her talk does puzzle me, but as I don't know the exact circumstances I shouldn't comment on this specific instance. However, another permitted act is criticism and review, and along with an exception for some educational purposes, this is what usually allows lecturers to illustrate their presentations .

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Rexbluei
12 September 2014

One of the speakers emphasised that full application of UK copyright law prevented her talk including any illustrations to cover the subject

I agree with this comment. If I do street photography I cannot include any buildings, any landscaping, any posters, any clothes, any vehicles, any signs, any logos and practically anything as they may be covered by copyright. So a strict interpretation of copyright allows nude photography, with a model release.

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Rexbluei
12 September 2014

The crested black macaque cannot own the copyright as it is an animal. However in my book the photographer owns the rights to image as he took a digital file and processed it and thereby added an artistic element. I do not believe that the crested black macaque could have downloaded the digital file, processed it through the relevant software and made the relevant adjustments. Therefore the photographer that did that owns the copyright to that manipulated version. The crested black macaque could appoint another artist to manipulate the image in a different way and then that person would own the copyright of that manipulation.
Should at sometime animals be invested with the ability to hold copyright then the crested black macaque could end up in dispute with the photographer who manipulated his image.
There have been the most enormous number of threads on the web about this and it is evident that there are as many views as they are those prepared to post them.
Apparently some US officials have deemed there is no copyright on this image which just shows how little they know about the art of processing a RAW image to produce a final image.
Without the photographer all that existed was a load of 0's and 1’s.
If I take a picture and I get someone else to 'manipulate' it then we share the copyright. If I'm a crested black macaque, I get left out! :-)

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Emily Mathisen
12 September 2014

I found this article really interesting - thank you Andy. I think the whole idea of who owns the copyright to images taken with your camera is fascinating - when Usain Bolt 'borrowed' a photographer's camera (while doing a victory lap to take some shots of the crowd) the copyright remains Bolt's apparently. However, I think it gets more tenuous when you have set up your camera for a studio shot and done the lighting and settings etc. and get someone else to push the button. I have attended photography courses where the person who has run the course maintains that the copyright remains theirs even if you have done your own settings on your camera and taken the picture, as they have created the scenario and lighting conditions they feel that they have ownership for it. This discussion brings a whole new dimension to the discussion!

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bjsdesign
03 June 2014

I recently attended a meeting at the Photographer's Gallery under the title "Does copyright still exist?" One of the speakers emphasised that full application of UK copyright law prevented her talk including any illustrations to cover the subject. The general thesis of the event was that UK copyright law was a long way behind the existence of the internet age and its norms and US copyright was only a little further ahead.

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