No, it’s that the artist has been litigious about having his art, which is permanently displayed in a public space, being shown in photos and videos. So, sort of how the OP sets it up, but the photo has the Bean (aka “Cloud Gate”) in the background. Something happens where copyright becomes an issue, such as the photo is used in an ad. Does Anish Kapoor sue for infringement on his copyright of the sculpture?
(They did settle out of court, with the NRA taking down the video, editing out the sculpture, or something.)
For 1, whoever pushed the button to set the timer in motion. For 2, you have copyright to the photo, but you may not have usage rights if you try to sell merchandise or tee shirts with it. You’d be fine in an editorial context. Copyright is separate from usage rights. The issue of public art (including buildings) and how you can use it in commercial photos is a bit thorny. Editorially or for fine art it’s generally okay, but that you may have to consult an intellectual property lawyer to get an exact answer. The photograph itself is your copyright, but how you can use it is a separate question.
In the near future, a variant of the OP’s question is: What if the “stranger” is an Android?
Based on recent rulings, the courts don’t seem to want to grant copyrights to stuff “created” by an AI. But I think that is going to get complicated down the road.
If it was a simple timer, I would agree. I push a button which directly causes a picture to be taken, even if it’s 10 seconds later.
However there are apps where software decides when to take the picture. I installed the software and turned it on, but the software decides the subjects are all smiling, so it’s time to take the picture. Very similar circumstance to when I hand my phone to a someone else, tell them to take a picture, and they do so when the subjects are all smiling.
Obviously, the real answer is that if it matters to enough people, a court will end up deciding the copyright status, as in the monkey selfie case referenced up thread.
What counts as “human intervention”? If I’m an artist, set up a camera on a tripod, and have software take a picture when somebody walks by and smiles, does that not count as human intervention? I could see that counting. Is there settled caselaw on this?
That’s pretty broad. In my example, I think it would qualify as human creativity. I envisioned the photo; I set it up; I framed it; I set it in motion with the intent of catching a passerby’s smile. My photo, my copyright. The intent and execution was a creative one not, say, a surveillance video.
Isn’t it the person who triggers the camera by smiling that has the copyright on the resulting photograph? They’re the ones with the creative control of the when and what of the photo. The person who set up the equipment is merely an assistant, analogous to myself and my friend in the original post.
I would argue not. The creative vision is in the photographer who set up the photo in my opinion. When a model, say, gives me exactly the right expression or pose, it’s not them who get the copyright or even split copyright. If I catch the right sports moment, it’s not the executors of the moment who get copyright. I see it the same way here.
ETA: oh, you’re saying the smile triggers the action. I don’t see how it’s analogous to the friend taking the photo. But in this case, the creativity lies with the photographer setting up the situation. If the subject is aware a smile will trigger the shutter, then I think that could be construed as creative intent, and in that case, I wouldn’t see it any different than using a radio remote trigger. Copyright with smiler then, I would think, barring a contract that says differently.
As an IP attorney, I can tell you the legal answer is that the stranger owns the copyright. There is no contract here that would suggest a work made for hire, as there was no consideration (among other issues). The practical answer is that the person who owns the camera will own the photo, and this will never be a real world issue.
While it can be done that way, it’s more common to grant the ad agency an exclusive license to use the photo as they see fit, but the actual copyright isn’t transferred.
The precedent surrounding dashcams or security cameras are pretty murky as far as copyright goes. They would seem to fail the “human intervention” test, in much the same way that “slavish copying” was also deemed not to generate new copyright. That said, the owner of the camera has control over the footage. So if your front door camera catches a sinkhole opening up in the street, as long as you haven’t posted the unaltered footage for anyone to see, you could impose licensing restrictions on anyone who wants that footage such as the local news station. So even if you don’t have copyright protection specifically, you can use contract law to get to a similar place. It’s harder to enforce though. Say you release the footage to BuzzFeed, anyone who copies their footage may be in violation of BuzzFeed’s copyright, but they’re not privy to nor beholden to your licensing agreement with BuzzFeed, so you’d have an uphill battle trying to fight that infringement.
This is similar to how libraries and historical societies gatekeep their collections. A lot of is is old enough to be in the public domain, but they restrict physical access and put digital watermarks on the website images as a means to control use and extract licensing fees. They may not actually use copyright itself, but website terms-of-service and paper agreements that require concessions/payments for access to copies of the material that they own have a similar function. If you were to find another source for a particular image then they can’t do anything, but if they hold the only copy of something then they can draw up copyright-esque agreements for access. So like werewolves says, whoever owns the “thing” gets to decide what to do with it in all but the most exceptional situations.