Mikey McMichaels wrote:
You've just made the photographer's case - he can claim that his RAW conversion is a derivative work. He's made a copy of the monkey's work and made a creative contribution.

I would have bought that argument until I read this:

studio36uk wrote:
503.03(a) Works-not originated by a human author.

In order to be entitled to copyright registration, a work must be the product of human authorship. Works produced by mechanical processes or random selection without any contribution by a human author are not registrable. Thus, a linoleum floor covering featuring a multicolored pebble design which was produced by a mechanical process in unrepeatable, random patterns, is not registrable. Similarly, a work owing its form to the forces of nature and lacking human authorship is not registrable; thus, for example, a piece of driftwood even if polished and mounted is not registrable.

studio36uk wrote:
In order to be entitled to copyright registration, a work must be the product of human authorship. Works produced by mechanical processes or random selection without any contribution by a human author are not registrable. Thus, a linoleum floor covering featuring a multicolored pebble design which was produced by a mechanical process in unrepeatable, random patterns, is not registrable. Similarly, a work owing its form to the forces of nature and lacking human authorship is not registrable; thus, for example, a piece of driftwood even if polished and mounted is not registrable.


Studio36

I guess this is why we have lawyers and judges.  It's not a cut and dry case.  It's how they will interpret the law. 

According to this it says "without ANY contribution".  The photographer DID contribute.  How did the image get off of his flash card? 

Photography is a process.  Always has been.  Capture is just ONE part of that process.  The monkey did not create a photo.  It basically pressed "enter" on a computer.   

That would be my argument.  Even if it's just shared copyright.  It's better than public domain!

Mike Collins wrote:

I guess this is why we have lawyers and judges.  It's not a cut and dry case.  It's how they will interpret the law. 

According to this it says "without ANY contribution".  The photographer DID contribute.  How did the image get off of his flash card? 

Photography is a process.  Always has been.  Capture is just ONE part of that process.  The monkey did not create a photo.  It basically pressed "enter" on a computer.   

That would be my argument.  Even if it's just shared copyright.  It's better than public domain!

The image had already been made by the time the image was pulled off the card.

The image was created at the moment the shutter was released -- anything after that is just shipping.  Up to and including the moment of the image being created no human was involved in the creation of the image... no composition, no posing, no lighting, nothing.

NothingIsRealButTheGirl wrote:
Although, great band name: The Monkey Owns the Photo

I agree - "The Monkey Owns the Photo" would be a GREAT name for a band!

Christopher Hartman wrote:

I think that depends.  If someone sets up the composition (such as on a tripod) then it's not the person that presses the shutter release.  But if you hand someone your camera and they are left to their own devices to setup the composition for the shot, then they can claim it.

I still have issues with that.  Unless a camera is being rented or borrowed, I think it should belong to whoever owns the camera.

Ummm.... The monkey "borrowed" the camera and took a picture of herself with it. By your own definition, she owns it, if ownership is possible in this case. If she is a kept monkey, then perhaps the zoo should be the rightful owners.

Nicholas Luke wrote:
the person who clicked the camera

This is the part some legal smart ass at wiki is missing, the law applies to a person, not a monkey...

studio36uk wrote:
503.03(a) Works-not originated by a human author.

[i]In order to be entitled to copyright registration, a work must be the product of human authorship. Works produced by mechanical processes or random selection without any contribution by a human author are not registrable. Thus, a linoleum floor covering featuring a multicolored pebble design which was produced by a mechanical process in unrepeatable, random patterns, is not registrable. Similarly, a work owing its form to the forces of nature and lacking human authorship is not registrable; thus, for example, a piece of driftwood even if polished and mounted[/b] is not registrable.

The monkey took multiple photos, and the photographer selected one, and did some editing.  I'm not a copyright expert(as I've proven before ), so I don't know if the photographer gets sole copyright.  But I do know enough to say that the photographer was involved in both the selection and the editing, and that he was obviously not in a work-for-hire arrangement with the monkey.  Thus, the photographer gets *some* ownership of the image, regardless of what else goes on.

I think the confusion is because photographers don't generally work with shared copyrights - but that stuff happens a lot in music, and there is precedent there.  Take Jefferson Airplane:  their drummer left, and he had a partial stake in the Airplane name.  That's how we got the steaming pile of crap that is Jefferson Starship - it wasn't because they knew better than to sully their once-great name.  Meanwhile, Axle Rose is the sole holder of the Guns 'n Roses name, AND their entire catalog.  Any band that has Axle Rose in it can be called Guns 'n Roses, and they can play GnR songs and re-record whatever GnR tunes they like.  All they gotta' do is ask Axle.  If you want to release Airplane material, you need permission from the whole band.  Or just their label ... the 60s were not good to musicians.

Mike Collins wrote:
The monkey will never own the photo or have the copyright.  It can't.  Pushing the button in this case has nothing to do with it.  Animals do not have the same rights as humans in just about every country I know of.

So it's not a question of whether the the monkey owns the the copyright or not.  That will never happen.  The question is, does it fall into pubic domain?

There's the issue, right there.  The photographer has the right to be consulted for use, as he is at least partial copyright holder.  At least one homo sapiens was involved in the creation of the image by selecting it over others and altering it(thus preventing it from being 'random selection', as noted above), so he gets at least a partial copyright credit.  Whether or not he needs to share with the preserve or anybody else, I have no idea.

joeyk wrote:

This is the part some legal smart ass at wiki is missing, the law applies to a person, not a monkey...

No they're not.  The law specifically addresses the issue of a work created with no human author.

Zack Zoll wrote:
At least one homo sapiens was involved in the creation of the image by selecting it over others and altering it(thus preventing it from being 'random selection', as noted above)

The image was created long before the photographer had a chance to select it from a list of photos.  The image was created the instant the button was clicked.

The only claim the photographer could have is that by colour correcting and cleaning up the image he created a *derivative work* based upon the original public domain image and the resulting image from those minor fixes enjoys copyright protection itself.

Trouble is that these "sweat of the brow" changes are not copyrightable.

http://www.gutenberg.org/wiki/Gutenberg … _Copyright

Some organizations erroneously claim a new copyright when they add value to a public domain item, such as to an old printed book. But despite the difficulty of the work involved, none of these activities result in new copyright protection when performed on a public domain item:

scanning and optical character recognition (OCR)
proofreading and OCR error correction
fixing spelling and typography, including substantial updates to spelling such as changing from American to British English
adding markup (HTML, XML, TeX, etc.)
digitizing, cropping, color-adjusting or other modifications to images
addition of trivial new content, such as images to indicate page breaks in an HTML file, or pictures of gothic letters for the first letter in a chapter, or adding or removing a few words per chapter
substantial reorganization, such as moving footnotes to end-notes, or changing the locations of pictures within the text
recoding to new character sets, such as Unicode, or new formats, such as PDF

Emphasis mine.

So while you guys may *think* that the photographer should be allowed to copyright these images.. he, in fact, cannot.

http://www.wpclipart.com/FAQ.html#un_pd

NothingIsRealButTheGirl wrote:

Mikey McMichaels wrote:
You've just made the photographer's case - he can claim that his RAW conversion is a derivative work. He's made a copy of the monkey's work and made a creative contribution.

I would have bought that argument until I read this:

You can make a derivative work out of something that started as public domain.

Wye wrote:

The image had already been made by the time the image was pulled off the card.

The image was created at the moment the shutter was released -- anything after that is just shipping.  Up to and including the moment of the image being created no human was involved in the creation of the image... no composition, no posing, no lighting, nothing.

If you send a RAW file to a retoucher, the file they create is a derivative work with a separate author. They can only do what they license to make the derivative work allows - in other words nothing.

What comes out of the camera is a RAW file, not a finished file and no one that looks like the LCD.

The RAW file may be public domain, but the converted file isn't.

E H wrote:
Works produced by mechanical processes or random selection without any contribution by a human author are not registrable.
   So the copyright is the photographers because the photgrapher contributed by downloading processed them and uploaded before Wikishitheads stole it,, that would be my take on it,, craving a piece of driftwood is a different thing is it not...
  Camera setting where made and set by a human, then processed by that same person, intent was clearly to see what would happen and if something could be gotten,, otherwise there would not have been any batteries or card in the camera...

You still don't GET it. The copyright [if any] is raised at the instant that the scene is fixed and the scene, in this case, was fixed at the instant that the ape pressed the shutter release - NOT when the image is downloaded from the camera or post-processed.

If no copyright subsists at the beginning, because the "author" was non-human, then no copyright is raised at the subsequent stage... even if the first subsequent act occurs a millisecond, or even a microsecond, after the ape released the shutter.

It is conceivably possible that the post processing gives rise to a derivative, but then only THAT derivative might, but only in certain cases, attract a copyright in and of itself. If the original frame and image is in the public domain then there it remains.

Studio36

Zack Zoll wrote:
Thus, the photographer gets *some* ownership of the image, regardless of what else goes on.

The photographer gets complete ownership of the image he created, which is separate from the image the monkey created.

Mikey McMichaels wrote:

If you send a RAW file to a retoucher, the file they create is a derivative work with a separate author. They can only do what they license to make the derivative work allows - in other words nothing.

What comes out of the camera is a RAW file, not a finished file and no one that looks like the LCD.

The RAW file may be public domain, but the converted file isn't.

Nope.  See the opinion of the Project Gutenberg lawyers above.  They, of anyone, would have a pretty solid idea of what is and isn't in the public domain.

studio36uk wrote:

You still don't GET it. The copyright [if any] is raised at the instant that the scene is fixed and the scene, in this case, was fixed at the instant that the ape pressed the shutter release - NOT when the image is downloaded from the camera or post-processed.

If no copyright subsists at the beginning, because the "author" was non-human, than no copyright is raised at the subsequent stage... even if the first subsequent act occurs a millisecond, or even a microsecond, after the ape released the shutter.

It is conceivably possible that the post processing gives rise to a derivative, but then only THAT derivative might, but only in certain cases, attract a copyright in and of itself. If the original frame and image is in the public domain then there it remains.

Studio36

Exactly, but unless they had access to the original unprocessed image, they're using the photographer's processing.

Wye wrote:

Zack Zoll wrote:
At least one homo sapiens was involved in the creation of the image by selecting it over others and altering it(thus preventing it from being 'random selection', as noted above)

The image was created long before the photographer had a chance to select it from a list of photos.  The image was created the instant the button was clicked.

The only claim the photographer could have is that by colour correcting and cleaning up the image he created a *derivative work* based upon the original public domain image and the resulting image from those minor fixes enjoys copyright protection itself.

Trouble is that these "sweat of the brow" changes are not copyrightable.

http://www.gutenberg.org/wiki/Gutenberg … _Copyright


Emphasis mine.

So while you guys may *think* that the photographer should be allowed to copyright these images.. he, in fact, cannot.

http://www.wpclipart.com/FAQ.html#un_pd

If the monkey only took a single photo, or the images were presented as a series, you would be totally correct. But since he took 'lots of photos' and only one was selected, that means that the final image was not created entirely without the photographer's input. That's where the shared copyright comes in.

Let's go back to music for a minute. Pitbull is a producer. It doesn't matter what you think of his music - only that he is a producer. If you and he write a song together, you both share the copyright. If you hire him to produce your record, he gets a producer credit and you get the copyright. If he hires you to sing on a track, you get vocal credit and HE gets the full copyright. In either of the second scenarios, one of you clearly hired the other person.

The monkey obviously did not hire the photographer. That means that at the very least, the photographer owns part of the copyright as a collaborator.

Sorry for using so many music references, but it's the only IP law I am aware of that regularly deals with shared copyright.

joeyk wrote:

Nicholas Luke wrote:
the person who clicked the camera

This is the part some legal smart ass at wiki is missing, the law applies to a person, not a monkey...

No Wiki isn't missing the point the press is in the way they are reporting it. Wikipedia has an internal page of several years standing dedicated to judgements of what is, and what is not, in the public domain for contributors and editors. It clearly cites the relevant section of the Copyright Office's compendium of office practice that I quoted above.

Studio36

Mikey McMichaels wrote:
Exactly, but unless they had access to the original unprocessed image, they're using the photographer's processing.

The original image is in the wild - available to all - and I have seen it. Google is your friend.

Even then any altered and derivative version of a public domain work does not necessarily give rise to a new copyright in the derivative version.

Mikey McMichaels wrote:
The photographer gets complete ownership of the image he created, which is separate from the image the monkey created.

That is not necessarily, or always, true.

Studio36

Zack Zoll wrote:
The monkey obviously did not hire the photographer. That means that at the very least, the photographer owns part of the copyright as a collaborator.

Sorry for using so many music references, but it's the only IP law I am aware of that regularly deals with shared copyright.

In the US a joint authorship or shared copyright MUST be supported by "an instrument in writing" that sets out the intent of the joint authors to create such a work or joint copyright owners to exist as such, as in the latter case copyright [or a share of it] can only transfer between any involved parties in writing. And that presumes that a copyright exists at all, which, on the story as we know it, I doubt. Unless the monkey is literate to a human standard I am certain such an agreement IN WRITING does not exist.

Even if, by some stretch of the imagination, and some copyright subsists in the ape's image, Slater might be considered a "contributing author" by reason of cleaning up the images for presentation [he would NOT be, in that case, a "collaborator"] he [Slater] still would not be entitled to any of the economic value in the underlying rights.

Studio36

Nicholas Luke wrote:
Which leads me this question, if I want to be in the picture with a model, I set up the shot with my camera, but  have someone else press The button, do I own it or the person who clicked the camera

As I understand it the person pushing the button owns the copyright to the image. Which is why I use a remote for my remote shot I have in my portfolio of myself and myself with models for fun behind the scenes shots.

studio36uk wrote:

In the US a joint authorship or shared copyright MUST be supported by "an instrument in writing" that sets out the intent of the joint authors to create such a work or joint copyright owners to exist as such, as in the latter case copyright [or a share of it] can only transfer between any involved parties in writing. And that presumes that a copyright exists at all, which, on the story as we know it, I doubt. Unless the monkey is literate to a human standard I am certain such an agreement IN WRITING does not exist.

Even if, by some stretch of the imagination, and some copyright subsists in the ape's image, Slater might be considered a "contributing author" by reason of cleaning up the images for presentation [he would NOT be, in that case, a "collaborator"] he [Slater] still would not be entitled to any of the economic value in the underlying rights.

Studio36

I wouldn't doubt for a moment that I used the wrong words to describe what I meant. Like I said, I'm not anything resembling an expert - I didn't mean to use words that already had legal definitions. Scratch 'collaborator', and use co-creater, contributor, or any other relevant term that doesn't have a legal definition

The point is that 'natural works' are defined in your references as random events. Since photography is at heart about selecting a moment(which is why Canon and Profoto don't own all the copyrights),  the act of selection still comes from human hands. Were a single photo taken, then there would be no human selection.

What this is, is a real-world example of the idea that a monkey banging away at a typewriter will eventually produce the complete works of William Shakespeare. Only in this case, the monkey didn't type 'Act one, scene one.' He typed 'bananas act red. One Hyndai scene six one,' and the photographer decided what was gibberish and what would make it into the final product.

There was very obviously a human element at work, and not just in the literal sense that monkeys can't upload photos.

GPS Studio Services wrote:
Now that this has gone on for three days, there is an interesting article on the subject online:

http://www.greenbergglusker.com/news/ar … ds-selfie-

Read the article.  You will find it interesting.  It also affirms and contradicts a lot that has been said in this thread.

That case is fundamentally different.  Bradley Cooper is a human being. Ellen could be considered to have been directing him in how to compose and take the photo, etc.

Mikey McMichaels wrote:
The RAW file may be public domain, but the converted file isn't.

Not according to Bridgeman Art Library v. Corel Corp. Now, had the photographer made obvious changes to the shot, say, colour the monkey red, then Schiffer Publishing v. Chronicle Books might apply. It seems, however, that the processing was done in such a way that the image be true to the actual scene (although many no doubt will argue that rotating and cropping creates derivative works -- photographers might want to tread carefully if making that argument).

Mikey McMichaels wrote:
You can make a derivative work out of something that started as public domain.

Yes you can, but you have to do something major. If all you had to do was 'polish' it there would be no such thing as the public domain.

Garry k wrote:
I think it's a sad irony that a monkey can "own " a photo but not his own personal freedom

If Wikipedia actually thought the monkey owned the photo then they would be prevented from posting it.

No one owns the photo. That's why they can post it.

studio36uk wrote:

Mikey McMichaels wrote:
Exactly, but unless they had access to the original unprocessed image, they're using the photographer's processing.

The original image is in the wild - available to all - and I have seen it. Google is your friend.

Even then any altered and derivative version of a public domain work does not necessarily give rise to a new copyright in the derivative version.

That is not necessarily, or always, true.

Studio36

The photographer uploaded the RAW file straight from the camera?

I think the version that's floating around is the photographer's version.



Whether there are cases where it's not true has no relevance to this thread. Pick a position, it's true in this case or it isn't.


If you've ever seen RAW sensor data, there's zero question that it's true. If you've asked an IP attorney, there's no question it's true.


It's possible that the camera was shooting JPEGs and that's what was uploaded.

NothingIsRealButTheGirl wrote:

Yes you can, but you have to do something major. If all you had to do was 'polish' it there would be no such thing as the public domain.

Conversion from RAW sensor data is major.


If someone makes a poster of a painting that's public domain, they will make as little change as possible from the original, but that doesn't make it legal to make copies of the poster.

GPS Studio Services wrote:
Now that this has gone on for three days, there is an interesting article on the subject online:

http://www.greenbergglusker.com/news/ar … ds-selfie-

Read the article.  You will find it interesting.  It also affirms and contradicts a lot that has been said in this thread.

A few lines of the article sums up this thread nicely and pretty well answers the question on the point of originality. It does not, however, pointedly answer the question of the public domain status.

... As a result, as Hughes observes, “[t]here is a widespread belief that all photographs are protected by United States copyright law … [which] often produces absurd results.” An amusing example that Hughes gives is a claim made by in 2011 by a news agency that it owned copyrights in several selfie photographs taken by a female macaque monkey after the photographer accidentally left his camera within her reach. (Sadly, the monkey never executed an assignment of rights in favor of the news company). ...

Studio36

Photos by Stan wrote:

Might be wrong , but ONLY if the photographer PAID the person to push the button

Other than that , the person pushing the button chose that specific instant , therefore was the artist that created an image ....

No , really , I have no idea
.. pretty sure it has nothing to do with who owns the equipment though !

This could be a major issue for wildlife photographers who set up their cameras on a tri pod with motion activated sensors, wire trips and so on. What happens when the perfect picture is taken of a lion attacking a gorilla and it is assumed that the actions of the two tripped the camera sensor only to find out later that a baby elephant passing by tripped the sensor at the perfect moment.

One thing to keep in mind is of them only the photographer could turn on the camera, set the settings and hmmm, remove the lens cover.