Geez, Nemo, stop thinking so 20th-century!
I say, how should a simple animal be expected to light the flash powder? Poppycock!
In addition to the hundreds of shots being taken, they were probably cropped later by humans to give the perfect framing. The pictures shown all have different aspect ratios. So it’s really only the focus that needed to be right by chance, and a few percent is perfectly plausible for that.
And even if this is a hoax, there are plenty of documented cases of animals producing something that might be described as art. The same legal questions arise for any of them.
In the shot with Slater, he doesn’t look like he’s posing, he looks like he’s trying to get his camera back. He’s just doing it carefully, because he’s surrounded by a pack of wild animals who are also an endangered species, who are also showing a surprising lack of fear at having a human in their midst. Getting his camera back intact was, I am sure, an important consideration. Not getting himself hurt, hurting any of the monkeys, or scaring them off were probably more important considerations at the moment.
What, 24 posts and no references to “Ape Law”?
Although this comment is right on the money as to the question of authenticity, I think it might bear on the legal question as well. Photographer Slater may well say, “Sure, no one owns the copyright on the original photo. It’s in the public domain. But I cropped it to give it the perfect framing, and that alteration allows me to claim copyright on the version that we published.”
Is that tenable?
That’s true. I was thinking professional photographers still mostly use film but I could be wrong or Slater could be an exception.
How do you feel about my natural phenomena argument?
For example, suppose I spread out a sheet on canvas in my backyard and exposed it to the elements overnight. The next day I found it soiled in various ways by its exposure including having been defecated on by some birds. However, I don’t think anyone would claim that the birds “created” the work or had a legal claim to it. It’s my creation because I had the idea of exposing canvas to the outside environment as a form of art. The birds were just part of the environment I used to make my art.
I agree the birds have no legal claim on it, and I agree the macaque has no legal claim on this photo.
But I’m not sure the photographer does, either.
As far as your canvas, I don’t think you have a copyright on it either, unless you do something to add to or change what the birds did.
But on the plus side, it sounds perfect for an NEA grant.
Apparently a Canon EOS 5D DSLR. Which is digital.
And apparently the camera was mounted on a tripod and the monkeys were handling the remote shutter cable release.
Is cropping in and of itself enough to be considered a creative endeavor?
And on thinking about it some more, I don’t think the monkeys in this case have a claim, since they didn’t realize they were creating anything (or at least, that they were creating visual images; they were arguably using the camera as a musical instrument). But there have been elephants who paint, too, who presumably do know that they’re making something to be looked at.
If the photographer made changes to the image, such as cropping it or color correcting it, he could assert a copyright in his work. In sense, he made art from found objects.
“What we’re doing here, right, is just giving you a bit of monkey news that’s gone on, where a monkey’s been involved in it. Good little story an’ that.” - Karl Pilkington
the tripod and remote story is slightly more plausible, but I don’t find it realistic that they would leave the system setup and unattended, it’s just worth too much money for anyone who makes a living off their gear to leave it for long enough for “hundreds of photos” to be taken.
Whats more likely is that they were crouching in a blind nearby with the remote and humans triggered it when the monkeys walked up close to the camera. It just so happened that in one shot the monkey put his hand out to touch the camera and it looks like he is taking a self portrait and holding the camera.
Very very few professionals use film anymore, even for large-format the quality from large format digital backs is excellent. The Canon EOS 5D or 7D is the mainstay for most pros that I know.
If you found a seashell on the beach, could you claim any copyright in it? (Assuming you made no other alterations to the thing than picking it up.) I suppose you could claim the object itself as property (assuming there are no complications with your having picked it up in protected national park where such things are not allowed or something like that.) I suppose you could then therefore refuse to allow other people to photograph your property without your permission. The camera was originally the property of the photographer, so any images it contains would also be his property–if a monkey “decorated” the camera by hurling feces at it, it would still belong to the photographer.
But in this case, we’re talking about an image, contained within the physical object (the camera) rather than a tangible object (like a seashell). With copyrighted things, you can give them away (sell them, rent them, etc.) without giving up ownership of them. While the photographer could let you borrow his camera, or sell it, or rent it out by the hour, I don’t see how he could simultaneously give it away to all and sundry and at the same time keep it. With an image, you can give it away (publish it on the Internet) and, under copyright, retain rights to it (e.g., allow people to use it non-commercially while still retaining the right to object to its use in a beer ad or political commercial). But the photographer didn’t actually make the image, like we think of in most cases of intellectual property; he just found it, like a seashell at the beach…
These are “wild animals”, aren’t they? (Not pets or livestock.) Who owns “wild animals”? (Perhaps the national government, in this case of Indonesia.)
There’s also been quite a bit of discussion of this story at Lowering the Bar (I will admit to being the reader who told him "the difference between you and a monkey is significant). (And I recommend that site highly to any lawyers who don’t read it already - where else will you find an actual Order Granting Motion to Compel Lunch.) The last one of those links includes a reference to a law review article on this topic.
I believe that the government of Indonesia owns these monkeys, as it owns the park where they live. (My memory is that uncaptured wild animals either belong to the property owner or the state, depending on how migratory they are, but it’s been a while since law school.) There is definitely an argument that they own any copyright in the images as well.
I had not thought about the argument that the photographer’s creative contribution was sifting through hundreds of crap photos in order to locate the ones that could be cropped and otherwise processed to look good. I guess that’s possible. TechDirt seems convinced that they’re public domain.
If I set up a camera on a tripod, trigger the self-timer, and race into the shot to pose with my family, do I own the copyright on the shot in spite of the fact that the shutter was tripped by a solenoid and not by me?
If I set up a camera with a remote shutter release connected to sensor to capture a shot of a bullet breaking a pane of glass, do I own the copyright on the shot in spite of the fact that the bullet tripped the shutter and not me?
If I set up a camera in a blind in a cornfield with a motion detector that trips the shutter when geese are feeding in frame, do I own the copyrights on the shots in spite of the fact that the geese caused the shutter to be tripped and not me?
If I intentionally set up a camera and give a monkey the remote shutter release, how does that differ from the previous cases?
I honestly don’t know the answer to that question, so don’t think I’m trying to pose a gotcha or anything. I think pretty clearly I own the copyright in the first three cases. I’m not sure what’s different about the fourth that would change things.
I am guessing the issue is you did not hand the monkey the camera but rather they took the camera and that while it cannot be legally claimed to grant the monkey a copyright neither can you (or your employer) claim a copyright.
I’d say as a practical matter and not one of just theory the human can claim the copyright in this case and unless the apes dispute his claim then he (or his employer) have no worries.
Unless, of course, someone else copies the image and they have to enforce the copyright. Say, someone like TechDirt.