Author: Leslie Burns

Well, this does not bode well for any photographer claiming authorship of a monkey selfie when U.S. Law applies. The public draft of the Copyright Office Compendium III has just been released (more info here) and it includes the following (from Section 306: The Human Authorship Requirement):

The Office will not register works produced by nature, animals, or plants. Likewise, the Office cannot register a work purportedly created by divine or supernatural beings, although the Office may register a work where the application or the deposit copy(ies) state that the work was inspired by a divine spirit.

Examples

• A photograph taken by a monkey.

• A mural painted by an elephant.

[…]

First, let me apologize for the title of this post. I just couldn’t resist.

Last evening I decided to do a smidge of research into the issue of who would own the copyright if the monkey selfie had happened here or to an American photographer. Just a smidge of research, mind you–not comprehensive because, hey, I have to be a real attorney to my real clients and, although I love love love research (as everyone in my firm knows: I am the nerd), I can’t spend all my time looking up stuff for academic pursuits like this.

Anyway, here’s what I found…

First, I downloaded the pdf of the Copyright Act–the whole thing including appendices. Then I searched various terms to see if the statute spoke directly on any of the issue. I looked up non-human, human, animal, and for good measure, machine. Human appears 3 times and non-human not at all; animal appears once (and that was in the text about the Uruguay Agreement about protecting animal life); and, machine appears 28 times (mostly about methods of displaying or performing works). I also looked up Author, which is all over the place, of course, but is never defined as human exclusively in any way at all.

So, in the statute itself, there is no requirement that an author be human. Next step, look at the case law to see what the courts have said about non-humans and copyright ownership. There I found something fascinating: Urantia Foundation v. Maaherra, 114 F. 3d 955 (9th Cir. 1997).

In Urantia, the work at issue was a text that was, according to both parties, “authored by celestial beings and transcribed, compiled and collected by mere mortals.” The court thus looked at the authorship issue in some detail as “[a] threshold issue in this case is whether the work, because it is claimed to embody the words of celestial beings rather than human beings, is copyrightable at all.”

Hello, monkey!

The defendant claimed that the work was not copyrightable at all because of the non-human authorship. The court noted that “The copyright laws, of course, do not expressly require ‘human’ authorship […]” but pointed out that, in reality, the protections of copyright are for the tangible works that involve some human effort. The court then expounded on how even if the original authorship here was by celestial (non-human) beings, humans were involved in getting the work into a tangible form that humans could then access (read). Importantly for our monkey problem, the court noted that Feist put the bar for creativity very low so as long as a human (or humans) did something to contribute to making this work, then the copyright did exist and vested in those humans:

Urantia Foundation at 959.

In the case of the monkey selfie, our imaginary American photographer similarly made the work. He took the material from the non-human “provider” and put it into a form for human consumption and appreciation. If it were not for the human, those files would only exist within the camera–never making it out into the world. As far as creativity is concerned, at the very least the photographer tweaked the files (I’m sure) when converting them from RAW and he selected which ones to keep and which to delete.

Therefore, I would argue, that under Urantia, our imaginary American photographer is the copyright owner of the work even though the monkey snapped the photos.

 

I really didn’t want to get into this discussion but I’m getting asked by a lot of people for my opinion on the “monkey selfie.” If you don’t know what the story is, you can read about it here.

Okay, here goes… I can’t really address the ownership issue because the photo was made by the animal in Indonesia and the photographer whose camera was used by the animal is not American, he’s a UK subject. So, in short, US law does not apply.

No, it doesn’t matter if Wikimedia is US-based. That would go to the infringement part of the equation, but the first issue here is “who originally owns the copyright in the photo” and I can’t figure any way where US law would apply there. How could it? There is nothing US-related to the creation of this photo: UK photographer, Indonesian monkey, in Indonesia. So, original ownership would be either Indonesian law or UK law (probably UK).

I do find it interesting that the Wikimedia person apparently is saying the photographer can’t claim ownership because of the law but she says, according to the article cited above, “What we found is that U.S. copyright law says that works that originate from a non-human source can’t claim copyright.” Like I said before, U.S. copyright law would not apply as to the original ownership here.

Now, as far as any possible infringement by Wikimedia, well, that would be adjudicated in the US if the organization is US-based (and I think it is but I haven’t researched it). That means a US court might look at the ownership issue as a part of a trial regarding the infringement, but if the copyright is (potentially) a UK copyright, then the validity of the copyright ownership would rely on UK law, not US.

Now, putting the law aside, I think Wikimedia is being a bully here: a large organization, rather than respecting a human who may have rights here (I think does have rights, but let’s put it in terms kindest to Wikimedia), steamrolls the human just because it can. There is no harm to Wikimedia to defer to the photographer here, even if the photographer is wrong about his ownership. But it is in Wikimedia’s best interest to eliminate IP rights (and it has come out against the EU’s “right to be forgotten”) so it will push that agenda no matter what harm it may cause to a real, live human.

I think Wikimedia’s behavior is monkey poo.

______

Update

I was thinking about ownership even Under US law and, not to compare assistants to monkeys, but pro photographers forever have had assistants “hit the button” (and more) but the copyright still vests in the photographer; not just because of WMFH but because the making of the work was entirely effected by the photographer, minus the act of button-pushing. And what about using a timer to make an image? Is there no copyright to vest if the work is made by the use of a timer? Does my iPhone hold the copyright to my timered selfies? I think not…

 

[also, please remember that I do not approve anonymous comments so don’t even bother trying, haters]

Last evening, I went to an event where Scott Turow was “interviewed” by the General Counsel for Qualcomm, Don Rosenberg. Really, it was a big book promotion event so I wasn’t expecting much out of the talk except for the usual stuff about the writing process, even though the co-sponsors of the event were not only a local independent bookstore but also Qualcomm and the Law Library of San Diego.

Turns out the evening was very much a discussion about intellectual property. I was in my own particular kind of nerd heaven.

For those of you who don’t know, Mr. Turow is the recently-former President of the Authors Guild. Under his four years at the helm, that organization has done a metric ton on steroids to promote strong copyright for the small creative professional. As Mr. Turow put it at one point last night, publisher contracts these days are very favorable to best selling authors so the fight that the Authors Guild has been fighting is for the smaller professional writer who, these days, is finding her/himself no longer able to make a living by writing.

Sound familiar?

I was so happily surprised to hear Mr. Rosenberg speak about the importance of IP as well. He made a convert of me (I was not a Qualcomm fan before this) as he discussed the problems with IP in China and Russia and, along with Mr. Turow, expounded on how if we don’t protect IP then innovation will die off–IP is the foundation. He made a big point of how although much of Qualcomm’s IP is patents, they have a lot of copyrights and a few trademarks too and that protecting all IP is vital.

Together, they discussed how fewer choices will make us more and more like China, where there is little innovation but much imitation. Also, how companies like Google make their money from the ads that appear in all of their products/platforms so they don’t care about whether the content is legal or not or if the cellphones that deliver their ads are pirated/counterfeit; etc. Amazon wants to become the only publisher in the US (world?) so that they can then take a bigger and bigger cut from each author or publisher because there will be no other place to go.

We have to stand up now to these companies. We have to make the hard choices to avoid using their products, to say “no” to their terms and their temptations of free, to seek out other sources for the products/services they offer. We also have to make sure that their voices are not the only ones heard in Washington, DC.

Amazingly, there were lots of heads nodding in agreement as they discussed these issues, especially when the idea of an artist being fairly compensated for her/his work was mentioned. The people really do get it–they just need to be reminded. The younger generation needs to be educated, especially about how it is NOT fair to expect free.

We also, each of us, need to support our creative brethren in all the disciplines. Take some time to think about what you do that contributes to the problem. Are you watching videos on YouTube that you suspect are not posted by the copyright owner(s)? Are you using Amazon because it’s just so convenient? Gmail, anyone? Are you using music you haven’t paid for or did you share that facebook post from BuzzFeed (notorious infringers)?

Now is the time to be more mindful of what we are doing and to do everything we can to support ourselves and our creative culture, before it is too late.

 

A while ago I posted (maybe on FB) about this Tumblr (whopaysphotogs) that was looking for info about which clients pay what rates. Now they have published a spreadsheet with the results. Please keep in mind that the data is only as accurate as that which was reported so “your mileage may vary,” but at the very least it gives a general idea.

Mark your calendars to come see my presentation Contracts, Releases, and Rights, Oh My! at ASMP-SD. I plan to share meaningful, helpful information on several topics that affect your business, and to do it in as normal an English as possible.

In great shoes, of course.

More information, including location, when it gets nailed down.

The NYTimes has an article on the use of drones in wedding photography. Even if you don’t shoot weddings, if you are interested in using drones in your work it’s worth a read.

I saw this brief interview on Tumblr and was particularly happy with this comment:

Whatever you do in life if it must be for yourself. When thats the case then you will want to keep your practice going, because you believe in it.

Photographers aren’t alone in struggling to make it today. Here’s an op-ed from the NYTimes about writers and money.

Talking about money is a good thing and the more open people can be about it, the less (I think) the cheap bastards who take advantage of silence will push you around.

The California Lawyers for the Arts are talking Photography and the Law in Los Angeles THIS WEDNESDAY. Go if you can!