For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Friday, 8 August 2014

The Case of the Black Macaque

This Kat had quite set his mind against posting anything to do with the Case of the Black Macaque, which has motivated literally hundreds of readers -- who already know all about it -- to email him and numerous other Kats, severally and individually, to ask them if they saw the news and/or to inquire as to why no post had yet been published on it. Meanwhile, gallant Katfriend and distinguished academic Estelle Derclaye kindly stepped forward and offered to pen the following guest post:

"As many readers have already heard, a dispute has arisen between Wikipedia and David Slater, a British photographer, about some monkey business. The latter occurred when the photographer's camera was stolen by a monkey (a crested black macaque) while he was on a trip to Indonesia in 2011 and the monkey took a few shots of herself (she being a female, with a beautiful smile at that). Wikipedia argued that, since was is the monkey and not a human being who took the pictures, there was no copyright; it thus  posted the pictures on the entry for the endangered macaque without asking the photographer. But, from the photographer's perspective, copyright did subsist -- for it was he who set up the camera: the monkey only pressed the button (actually, as of 8 August at 1700 pm at least, the contested photograph was still on Wikipedia's site, accompanied by an explanation about the dispute). It has been rumoured that, before releasing the photograph, the photographer made some amendments to the shot [could this be taking the photo into to wonderful world of the Red Bus case, Merpel wonders].

Are paintings by cats any different, in legal
terms, from selfies taken by monkeys?
So is there copyright in the photograph? It seems like this will be an evidential issue. If the photographer did indeed adjust the camera settings and the monkey stole the camera, then the monkey just pressed a button and is not the author, but the photographer is. But what if the settings got lost while the monkey was playing with the camera? Is there a witness (e.g. was the travel guide accompanying David Slater there at the moment the photos were taken)? If only monkeys were there, we have no (human, thus valid) witnesses ...  Then can the photographer have the benefit of the doubt? Can the amendments qualify the photograph as a derivative work made by the photographer? It will depend on the type of amendments and whether they fulfil the ''author's own intellectual creation'' criterion as developed by the Court of Justice of the European Union in Case C-1245/10 Painer [noted by the IPKat here]. This guest blogger has no additional information as to the nature of these amendments (if readers do know, please share this information with the IPKat). Or, and here's yet another possibility, should there be a compromise in the guise of a compulsory non-exclusive licence against (modest) payment in view of the evidential problem?

In this guest blogger's view, the photographer may have a case -- and he actually wants a court to decide the issue. So let's see if the case lands in the -- presumably -- IPEC".
Links to the story in the news here and here

Macaques on them blogosphere here, here and here

This Kat thanks Estelle for her efforts, and pauses to note that the Elephant Art Gallery offers paintings by elephants, but its copyright notice asserts that it and not the elephants own the rights. He's not sure what assertions are made in respect of artwork generated by cats, but assumes that the post-mortem period of copyright protection kicks in only after the expiration of the author's ninth life.

21 comments:

Derek said...

This seems like a no-brainer to me. Copyright attaches to the creator of the work, and in this case, it was the photographer who designed and planned the shot, engineering the whole environment and situation which resulted in the photograph. The fact that he didn’t physically press the button doesn’t matter. Otherwise when somebody asks a stranger to help take a group photo the copyright would belong to the stranger. Or copyright in films would actually belong to the DOP or whoever was actually manning the camera.

Re evidence: on the balance of probabilities? There's enough circumstantial evidence (who had possession of the camera at the material time, who holds the original file, who posted the original post...etc) to find in favour of the photographer methinks.

Anonymous said...

Did the camera owner crop or rotate or otherwise photoshop the picture before releasing it? This requires at least a modicum creative expression and artistic skill.

Graham Smith said...

Is it quite so simple? Let us assume in the photographer's favour that he deliberately set up the camera on a tripod with a cable shutter release in the hope that the macaques would come along and play with it. That's what happens. The macaques take hundreds of shots, most of which are useless, blurred and so on but one or two turn out to be corkers.

So what is the creative input of the photographer? The photographer engineered the environment, but can one say that the photographer designed and planned in a creative sense each and every shot taken by the macaques, including the few successful shots that resulted from a largely random process? and where the taking of each particular shot was the action of the monkey, not the photographer (and so different from e.g. setting up a camera triggered by movement across a sensor)?

Ben said...

Back in 2011 Aurelia J. Schultz posted an article on the 1709 Blog looking at this from the perspective of UK law and Indonesian law - as that is where the photo was taken - and the Daily Mail published the pictures here in the UK and online - and one of the thtee published 'selfies' had (C) Caters News Agency embedded in the shot with Mr Slater explaining "One of them must have accidentally knocked the camera and set it off because the sound caused a bit of a frenzy" and "At first there was a lot of grimacing with their teeth showing because it was probably the first time they had ever seen a reflection. They were quite mischievous jumping all over my equipment, and it looked like they were already posing for the camera when one hit the button. The sound got his attention and he kept pressing it". There is no mention of Slater amending the shot at that time although the three shots do look beautifully positioned and cropped in the Mail. Aurelia's opinion on the then known facts - "it appears under UK law, the photos are in the public domain. Under Indonesian law, the matter is less clear." Monkey see, Monkey do - Monkey get Copyright Too? is here http://the1709blog.blogspot.co.uk/search/label/photographs%20placed%20on%20website. The debate about recent Oscars group 'selfie' springs to mind too - Eleonora's blog here http://ipkitten.blogspot.co.uk/2014/03/copyright-related-question-right-from.html


Anonymous said...

Now that a computer program has passed the Turing test we await the day when one of them tries to assert its IP rights.

Anonymous said...

Under UK law, all that is required for a photograph to be copyright is that it be 'original'. According to the CDPA Sec 4(1), it does not have to possess even a modicum of artistic quality. It does not therefore have to involve any 'creative expression', 'creative input' or 'artistic skill', each of which serves only to produce irrelevant 'artistic quality'. It merely needs to be taken.

That being the case, 'original' cannot and should not be used, as a matter of standard construction, to reintroduce criteria specifically excluded from consideration by the Act. That term has a single, simple, very good, indeed main, interpretation that does just that. It is 'new'. And a photograph that has not existed before is undoubtedly new regardless of who or what took it. It is therefore protectable by copyright.

Property, even intellectual property, has to have an owner, and that owner must according to the CDPA Sec 9(1) be 'a person'. It can only be the 'photographer'.

Michael Factor said...

I beg to differ.

See

http://en.wikipedia.org/wiki/Great_ape_personhood


Great Apes have been recognized for being able to use tools and there are a number of experts on them and philosophers who consider that they should be reconnized as persons and as having various human rights including right of freedom, etc. Property right is a human right in some countries. It is considered a basic constitutional right in Israel, for example.
Modern China implemented intellectual property rights before regular property rights.

Germany, Spain and New Zealand all recognize various apes as having rights.

In this photograph we are not talking about a panoramic view set up by a photographer who got everything in focus and then someone else pressed the shutter. In this case, the picture is a selfie. The monkey is responsible for the lens-subject distance and thus for the focusing and the sharpness of the image. She is also responsible for the facial expression caught on camera - both for making the expression and for capturing it.

Personally, as gypsies and Jews and perhaps East Europeans were considered sub-human and systematically exterminated in living memory by Germans, I view their extending human rights to apes a little cynically. I have no problem with conducting medical experiments on apes to benefit humans, if there is good regulations to ensure that the experiments are justified and that unneccessary suffering is minimized.

There is also a movement to see local wildlife as a quasi-IP right and maybe the artistic creations of apes should be owned by the countries where such apes reside and used for furthering conservation.

Ron said...

Something that I have not seen mentioned is that, according the CDPA1988, while an author domiciled in the UK or an equivalent state is a sufficient condition for a work to attract copyright, it is not an essential condition. The following provisions of the Act are prima facie relevant:

S. 1(3) Copyright does not subsist in a work unless the requirements of this Part with respect to qualification for copyright protection are met (see section 153 and the provisions referred to there).

S. 153 Qualification for copyright protection

(1) Copyright does not subsist in a work unless the qualification requirments of the Chapter are satisfied as regards -

(a) the author (see section 154), or

(b) the country in which the work was first published (see section 155), or

(c) [broadcasts]


Note that these requirements are alternatives, not cumulative, and thus a work meeting either (a) or (b) will qualify it for copyright.



S. 155 Qualification by reference to country of first publication


(1) A .... artistic work.... qualifies for copyright protection if it is first published -

(a) in the United Kingdom, or

(b) in another country to which the relevant provisions of this Part extend.


(2) [first publication in another country to be treated as simultaneous if published elsewhere within 30 days]



Prima facie the publication in the Daily Mail was sufficient to cause copyright to come into existence by virtue of S. 155(1)(a) even if the photograph has no author due to having been taken by a non-human.

So even if the pre-publication manipulation by the photographer is not sufficient to consider the manipulated image to be a new work capable of attracting its own copyright, copyright will nonetheless exist by virtue it having met the conditions of S. 155(1). There is arguably a lacuna in the statute, as it clearly says that the work is protected by copyright, but does not say who it belongs to.

Possibly S155 was intended to cover the situation where the author was not a citizen of a qualifying state under S 154, but the first publication took place in the UK or a qualifying state. The term of copyright, which exists by virtue of S. 155, will be determined by the death of the author, even though the author did not qualify under S. 154.

The provisions dealing with the term of copyright where the author is unknown, still appear to assume that the copyright belongs to the unknown author. The situation where a work attracts copyright only by virtue of S. 155, but has no [human] author, simply isn't covered.



Regarding computer-generated works, authorship, and hence ownership, is covered by S. 9(3).

Anonymous said...

For me the photographer in this case is the macaque- thus copyright belongs to the macaque or the group of macaques involved in the picture taking. A solution to the possible suit- set up a fund for the benefit of the macaques for using their copyright image- proceeds going to whichever charity is trying to protect macaque territory.

Anonymous said...

Ben@10:42 : "There is no mention of Slater amending the shot at that time although the three shots do look beautifully positioned and cropped in the Mail."

Suspiciously well focussed and timed too...according to Slater, the macaques took hundreds of pictures, so this may well be a case of "typewriter monkeys", but since I know at least one particular primate (me) who has managed to do thousands of fuzzy, badly framed, badly focussed and/or badly timed photos without ever managing such a beautiful portrait, I can't avoid suspecting that Slater may well have embroidered the truth a bit to make his pictures more bankable, without considering the potential repercussions in terms of IP law.

patently said...

This one will of course be decided by the evidence. So let's look at the picture itself. Note that the background is nicely blurred to create an attractive portrait. That is not usually a default setting; it requires either post-processing, or for the camera to be set up to ensure a narrow depth of field. Modern cameras can do that with just one button, but it still has to be done. Either way, there is a minimal amount of setup required by the photographer.

Another thought that @copyrightgirl and I arrived at independently is the potential applicability of s9(3) CDPA. I dare say the camera was a digital camera, which will have many of the basic elements of a computer. Could this be a computer-generated work? If so, the author is the person who makes the arrangements for the work to be created, a much stronger pointer towards the photographer.

Derek said...

Let's suppose the camera was a gun.

The human actor in the scenario knowing enough about primates and anticipating their curiosity and ability to mimic (human) behaviour engineers an environment where he shoots the gun, gives opportunities to the monkeys to experiment with same.

A monkey picks up the gun, shoots other monkeys or maybe the human or other ppl nearby (randomly or deliberately).

Who is responsible under law?

Ron said...

The computer-generated point is interesting, but I don't think it holds much water. The image is produced by the camera's lens, which causes a pattern of light to fall on the camera's image sensor. All the computer does in respect iof image capture, is convert the image that exists on the image sensor, into electronic signals that can be stored for subsequent reproduction of the image that was present on the image sensor. The comuter in the camera does not create the image, it merely causes it to be stored.

On the other hand, as most cameras seem to have auto-everything functionality these days, including auto focus, it could be argued that the camera's computer had a hand in the appearance of the image by virtue of automatically focussing it (assuming thart the auto focus had not been disabled). Most cameras that I have seen recently have autofocus enabled by default. You have to override the default to focus manually.

I doubt that professional photographers would warm to the concept that, because their cameras contain computers, their photographs were in fact computer-generated works.

Andy J said...

The computer generated work argument is a complete red-herring. Section 4 (2) CDPA contains a perfectly simple definition: "“photograph” means a recording of light or other radiation on any medium on which an image is produced or from which an image may by any means be produced, and which is not part of a film; "
Why would any court need to look elsewhere to define a photograph? By the same analogy, all the text on this blog, and indeed the virtually the entire content of the internet has been produced by a computer, yet I think most rational people would be happy to retain the traditional definitions of literary, artistic, musical and dramatic works (and neighbouring rights) to describe the vast majority of what is posted.

Charles said...

Somewhat tardily, it has occurred to me that probably the first animal selfies were taken by Leland Stanford's horses in the 1870s. Although the cameras were set up by Eadweard Muybridge, the horses in motion triggered the shutter of each successive camera, employing stretched thread means. Later photographic sequences were not selfies, Muybridge having adopted a clockwork timing device.

Cristina said...

If there is no intellectual effort to create o work from a human perspective, there should be no exclusive right to excercise by any human.

Ron said...

The photograph was taken in Indonesia; therefore, Indonesian, not UK or US, law would apply. Looking at the Indonesian law, an author is a person. "Author shall mean a person or several persons jo
intly upon whose inspiration a Work is produced, based on the intellectual ability, imagination, dexterity, skill or expertise manifested in a distinctive
form and is of a personal nature." The law can be found at http://tinyurl.com/loke2z7.

Anonymous said...

Ron, Indonesia has land borders with Papua New Guinea, East Timor and Malaysia. Supposing the macaque was standing on the Indonesia side of the border but the camera in her hand was on the East Timor side, which law would govern copyright ownership?

Anonymous said...

Anonymous @ 16:57,

It is where the image is captured, not where the image is generated from.

Otherwise, pictures of the night sky would pose the same "problem."

There is no problem.

Ignoramus said...

I thought copyright in a photograph belonged to the owner of the recording medium (eg, film). So probably not the monkey.

Where did I get that idea?

Anonymous said...

Newsflash out of the US:

Copyright goes to the author of the work (not the owner of the equipment) and the Library of Congress has announced that since no person took the selfie, that no copyright is available in the US for any such work.

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