Gary Melton wrote:
if he says he took it, the monkey is in no position to say that he didn't.

Next time he'll do that

Gary Melton wrote:

The image was in his camera, if he says he took it, the monkey is in no position to say that he didn't.  It does work that way - any photo I take, I mark it with my copyright so that makes it mine.  It would be up to a court to prove that some monkey took my photo instead of me.

Too late.

He already said the monkey took it.

Also.. marking with copyright has *nothing* to do with whether you have the copyright.  Nothing.  The only thing it may help with is weakening the defense of someone who has infringed upon your work.

You get the copyright the instant you take the picture.  No further action is required.

Again.. you're wrong on pretty much all points.  It is the copyright holder's responsibility to prove to a court that they own the copyright.

If I infringe on a photo of yours but somehow you've lost the original and any proof that you took the photo then you're out of luck.  It's not my responsibility to prove anything.

Wye wrote:
No. That's not the way it works.

If party A feels that party B has infringed upon their copyright then *party A* must prove that they hold a valid copyright as a basis for suing for infringement.  It is not beholden on party B to prove that no copyright exists.

Actually it DOES work that way - ANYONE who knows ANYTHING about copyright knows it does.  Wikimedia is using the photo without paying any usage fees to the photographer (and since the photographer is saying that it is his, it is until a court proves otherwise)...which means that Wikimedia is infringing upon the photographer's copyright.  The injured party is the photographer so it would be up to him to sue Wikimedia in court.  Until and unless the court rules that the photographer does not own the copyright - Wikimedia has no right to use the photo without the photographer's permission.

It would be just like if I decided to take a photo taken by you with your copyright on it and said "you didn't take that photo, your dog did!" so therefore it is in the public domain and I can use it without your permission or paying you.  It would not even matter if you had said in a forum thread yesterday "the 3rd photo in the top row was taken by my pet raccoon"...maybe you were joking or maybe there is some other extenuating circumstance.  The point is neither I nor anyone else can just willy-nilly say that someone else's work is not theirs and use it for free.  It would take a court to prove that your pet raccoon took it and so is therefore in the public domain.

I'm sorry, but in this case - you are NOT correct!  I'm pretty sure some others here will support me on this.

It DOES NOT MATTER if the photographer ACTUALLY TOOK THE PHOTO...given the way copyright law works, if he says it's his - it is UNTIL A COURT proves otherwise.  If the photo had been taken by another human (as in the example you give of someone just saying that someone else's photo is theirs), then there would be a human to fight him about it in court (and unless he is crazy, the person stealing a photo would drop it because they know they would lose).  In this case - no one but the monkey can say it is theirs...and since the monkey CAN'T do that (and the court wouldn't recognize the monkey anyway) the photographer can absolutely say it is his, since he can prove that he is in possession of the original image file and no one else is.

Now, understand, I'm NOT saying that a court would necessarity rule in favor of the photographer - in fact, given all that has been said in this thread, I would suspect that the photographer might very well LOSE in court.

However, given the rules by which copyright does in fact work - he has established copyright by saying he has copyright...there is no way you can deny that, even if he said originally said the monkey took it.  NO ONE, not even Wikimedia can declare that he does not own the copyright and declare that the image is in the public domain.  A court would have to determine that.  Period...end of story!

Wye wrote:
...Again.. you're wrong on pretty much all points.  It is the copyright holder's responsibility to prove to a court that they own the copyright...

Ya still don't believe me?  Let's try it out.

Let's suppose I tell the world that your avatar was taken by your dog...I know, because I overheard you telling someone that he did, and you were just laughing your head off about it.  So I'm maintaining that your photo is in the public domain since a dog can't own copyright, which means I'm going to use your avatar for my logo for a new business I'm starting...and I don't have to pay you a thing!

[So you're the photographer and I'm Wikimedia.]

Can  I do that?  It's not true that I overheard you say your dog took the photo, but I've got some buddies who will back me up and say you did.

So did you lose your copyright the moment I accused you?

Did your photo go into the public domain the moment I accused you?

Can anyone use your photo without permission or without compensation the moment I accused you?


The answer to all those questions is NO!  THANK GOD - the answers are ALL NO!!!


As you said, the copyright was yours the moment the shutter was snapped, however I am saying that you didn't push the shutter - your dog did!

No - you would be the injured party and you would have to sue me and prove I was wrong in court.  Until then, the copyright of your avatar would be YOURS and it would NOT be in the public domain.  Now, if me and my buddies can convince the judge and jury that you in FACT DID SAY YOUR DOG took the photo, and that there were circumstance that compelled us to believe you were telling the truth...then you WOULD LOSE your copyright and your photo WOULD be in the public domain!  On the other hand - if you can prove that you took the photo beyond a shadow of a doubt, then you would keep your copyright (having never lost it) and your photo would not be in the public domain (where it would have never been).

Do you get it now?

It doesn't even matter that the photographer originally said the monkey took the photo...he could say he was joking or make some other excuse.


The villian here is WIKIMEDIA - they, just like everyone else including me, have no right to on their own declare that someone else's photo was taken by an animal and is therefore not theirs and in fact is in the public domain.

If Wikimedia can do this to that photographer, then anyone can do the same thing to anyone else.  But thank God, it doesn't work that way!!!

Gary Melton wrote:
The villian here is WIKIMEDIA - they, just like everyone else including me, have no right to on our own declare that someone else's photo was taken by an animal and is therefore not theirs and in fact in the public domain.

I thought the photographer admitted he didn't take the photo.

NothingIsRealButTheGirl wrote:
I thought the photographer admitted he didn't take the photo.

But just because he said he didn't take it - that doesn't mean he didn't.  He could have been joking...there could be other reasons.  That would be up to the court to decide.

If I thought I overheard you say that one of your photos was taken by your dog - could I just start using that photo without permission?  Would you lose your copyright the moment I accused you?  Would your photo go into the public domain the moment I accused you?  NO - because you would take me to court and either prove you took it, or I would prove you didn't.  In either case - it would be up to the judge to make that decision NOT ME!  That's how our society works.  Random individuals can't just start using someone else's IP without permission just on their own volition.

Gary Melton wrote:
However, given the rules by which copyright does in fact work - he has established copyright by saying he has copyright...there is no way you can deny that, even if he said originally said the monkey took it.  NO ONE, not even Wikimedia can declare that he does not own the copyright and declare that the image is in the public domain.  A court would have to determine that.  Period...end of story!

That's an interesting interpretation.

What if I say that I hold the copyrights to all of Beethoven's works?  By saying that I have the copyrights, I have established copyright, right?  So now I am owed compensation from anyone who plays Beethoven music without my authorization.  Cool.

And NO ONE can declare that I do not own the copyright and declare that the music is in the public domain.  A court would have to determine that.  Period...well, ellipsis.

And of course, since no one can declare that it is public domain, no one will play Beethoven music without my authorization, giving me no reason to sue them and have any court determine that Beethoven music is public domain.

Awesome.  I'm gonna be rich.

Gary Melton wrote:
Random individuals can't just start using someone else's IP without permission just on their own volition.

Yes, of course they can.  They do all the time.  And sometimes courts decide against them.  And sometimes courts decide in their favor.

You're using "can't" to mean "may not," and more specifically "may not legally."  There's a huge difference.

So, random individuals may not legally just start using someone else's IP without permission just on their own volition.  I think we can all agree with that.

But if I, in good faith, believe that something is in the public domain, I can certainly use it.  And if it turns out that you actually hold the copyright--and you prove that in court--then I must stop using it and pay you whatever damages the court orders.

Gary Melton wrote:

But just because he said he didn't take it - that doesn't mean he didn't.  He could have been joking...there could be other reasons.  That would be up to the court to decide.

If I thought I overheard you say that one of your photos was taken by your dog - could I just start using that photo without permission?  Would you lose your copyright the moment I accused you?  Would your photo go into the public domain the moment I accused you?  NO - because you would take me to court and either prove you took it, or I would prove you didn't.  In either case - it would be up to the judge to make that decision NOT ME!  That's how our society works.  Random individuals can't just start using someone else's IP without permission just on their own volition.

So let the dude say he was joking. Problem solved.

Unless he's too honest to lie.

Brian Diaz wrote:
That's an interesting interpretation.

What if I say that I hold the copyrights to all of Beethoven's works?  By saying that I have the copyrights, I have established copyright, right?  So now I am owed compensation from anyone who plays Beethoven music without my authorization.  Cool.

And NO ONE can declare that I do not own the copyright and declare that the music is in the public domain.  A court would have to determine that.  Period...well, ellipsis.

And of course, since no one can declare that it is public domain, no one will play Beethoven music without my authorization, giving me no reason to sue them and have any court determine that Beethoven music is public domain.

Awesome.  I'm gonna be rich.

Brian - answer me this: do you own copyright on every photo you've ever taken, (unless you gave it away or sold it)?  Can no one else prove that any of your photos are not yours?  Can you prove that every one of your photos are yours?

The answers to every one of those questions should be yes, unless you haven't kept your original image files.  I can answer yes to every one of those questions about my photos.

In other words - every photo you take is by law YOUR copyright.  You can say that every photo you take is YOUR COPYRIGHT.  You can prove that they are all yours and no one else can prove otherwise.  You can't claim Beethoven's work and get away with it.

Now, in the case at hand - the photographer SHOULD be the only person who has the original image files...so HE CAN prove he has the files and NO ONE ELSE should be able to prove they own them.  (This should be true for every photo that anyone takes, so long as they maintain their image files.)

Here is a potential scenario for the case at hand (and it in fact I think it could very well be the ACTUAL SCENARIO):  the photographer did in fact take the photos, but it occurred to him what a great story it would make to say that the monkey grabbed his camera and here are the results (not thinking it all the way through and so not realizing that this is what would happen).  So now, let's say he decides that he really wants to establish his copyright, so he comes clean and admits - "yes I took the photos myself and then made up the story about the monkey 'selfies'".  He might be liable for some other crimes or misdemeanors then, but if there is no one to dispute his story (or if in fact there are people who can corroborate his story), then he if fact DOES own the copyright.

Let's get one thing clear - I am NOT necessarily saying he, in fact, IS the copyright holder, or will be proven as such in the end.  The main thing I am saying is that who the hell is Wikimedia or any other private individual for that matter to declare that someone's copyright is not valid and that the image is in the public domain.  If that is true - then anyone can say any of my copyrights are not valid and any of my images are in the public domain...or do the same thing to YOU or anyone else.  Do you want to live in a world like that?  I don't!  It is up to a court to decide if his copyright is valid or not.

I hope the photographer sues the hell of Wikimedia and WINS!  But even if that doesn't happen - Wikimedia has no right to declare open season on usage of that man's image.

Anyone who has seen my posts before knows that I'm not someone to blindly stand up for "photographers' rights".  I've expressed my belief many times that the papparazzi are the scum of the earth because they make their money at the expense of the misery of others (anyone who defends the papparazzi would sing a totally different tune if they were the targets and had no privacy and were constantly being put in dangerous situations because of them).  I don't give a good g*dd*man if the papparazzi are legal - they are a pain in the ass of our world and should be treated as criminals as far as I am concerned - they are basically bullies...they want what THEY want and they don't care if others suffer because of it.

I just think that in THIS case that one way or another - these photos DO belong to this photographer and there is no way he should have them stolen from him and put into the public domain!

Gary Melton wrote:
Let's get one thing clear - I am NOT necessarily saying he, in fact, IS the copyright holder, or will be proven as such in the end.  The main thing I am saying is that who the hell is Wikimedia or any other private individual for that matter to declare that someone's copyright is not valid and that the image is in the public domain.  If that is true - then anyone can say any of my copyrights are not valid and any of my images are in the public domain...or do the same thing to YOU or anyone else.  Do you want to live in a world like that?  I don't!  It is up to a court to decide if his copyright is valid or not.

This is where your entire argument breaks down. If there is a doubt as to whether he is the copyright holder, then Wikimedia or any other private individual has every right to use the photo. If a court decides that they can't use the photo, they will have to stop and possibly pay damages. But the court may decide that the photo is in fact in the public domain, confirming that Wikimedia was right all along.

If no one ever used the photo without permission, its public domain status could never be decided in court. The usage would remain, right or wrong, only with the camera owner.

Intellectual property is a two way street. Copyright protects artists' rights to use their intellectual property, and public domain protects the public's right to use their intellectual property. That's why I can't get away with claiming to own the copyright to Beethoven's music--it belongs to you and to me and to everyone else.

And that is also why Wikimedia does have a right to use the photo (until otherwise decided in court). A guy who owns a camera cannot (by which I mean may not legally) claim to own public property without proving his rightful ownership in court.

Brian Diaz wrote:
This is where your entire argument breaks down. If there is a doubt as to whether he is the copyright holder, then Wikimedia or any other private individual has every right to use the photo...

So I just want to make sure I understand you...you're telling me that if Wikimedia or anyone else decides they will declare one of your photos to be in the public domain and to use it to their heart's content without your permission or compensating you - you are totally 100% okay with that?  Just because they have some doubt?  Even though they can't necessarily prove that doubt?

I'm at a loss - I DO NOT understand why you'd be okay with someone screwing you over.  Oh, well...





Well, hell...we might as well throw the entire copyright system out the window...if anybody can void it just by thinking that's what they want to do.

I'm out of this argument...don't understand people who don't have enough pride in their own work to stand up for it...or enough empathy for their fellow photographers to stand up for them when they are getting shafted.

Brooklyn Bridge Images wrote:
I guess the lesson here is
The photographer should have wacked the Monkey and covered his tracks on who took the photo

You know what I really think very likely happened?

I think it could very well be that the photographer did in fact take the photos, then it occurred to him what a great story it would make to say that the monkey grabbed his camera and here are the results.  The problem is that he didn't think it all the way through, and so didn't realize that this would happen.


I've been on MM for just a hair under 8 years and for the first time ever...I plumb wore myself out arguing a point.  I gotta rest and recover.  It was fun everybody!

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.

studio36uk wrote:
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). ...

studio36uk wrote:
Studio36

That article speaks, quite directly, to the issues in this thread.

Gary Melton wrote:

You know what I really think very likely happened?

I think it could very well be that the photographer did in fact take the photos, then it occurred to him what a great story it would make to say that the monkey grabbed his camera and here are the results.  The problem is that he didn't think it all the way through, and so didn't realize that this would happen.


I've been on MM for just a hair under 8 years and for the first time ever...I plumb wore myself out arguing a point.  I gotta rest and recover.  It was fun everybody!

Plausible...yes

Gary Melton wrote:
Ya still don't believe me?  Let's try it out.

Let's suppose I tell the world that your avatar was taken by your dog...I know, because I overheard you telling someone that he did, and you were just laughing your head off about it.  So I'm maintaining that your photo is in the public domain since a dog can't own copyright, which means I'm going to use your avatar for my logo for a new business I'm starting...and I don't have to pay you a thing!

[So you're the photographer and I'm Wikimedia.]

Can  I do that?  It's not true that I overheard you say your dog took the photo, but I've got some buddies who will back me up and say you did.

So did you lose your copyright the moment I accused you?

Did your photo go into the public domain the moment I accused you?

Can anyone use your photo without permission or without compensation the moment I accused you?


The answer to all those questions is NO!  THANK GOD - the answers are ALL NO!!!


As you said, the copyright was yours the moment the shutter was snapped, however I am saying that you didn't push the shutter - your dog did!

No - you would be the injured party and you would have to sue me and prove I was wrong in court.  Until then, the copyright of your avatar would be YOURS and it would NOT be in the public domain.  Now, if me and my buddies can convince the judge and jury that you in FACT DID SAY YOUR DOG took the photo, and that there were circumstance that compelled us to believe you were telling the truth...then you WOULD LOSE your copyright and your photo WOULD be in the public domain!  On the other hand - if you can prove that you took the photo beyond a shadow of a doubt, then you would keep your copyright (having never lost it) and your photo would not be in the public domain (where it would have never been).

Do you get it now?

It doesn't even matter that the photographer originally said the monkey took the photo...he could say he was joking or make some other excuse.


The villian here is WIKIMEDIA - they, just like everyone else including me, have no right to on their own declare that someone else's photo was taken by an animal and is therefore not theirs and in fact is in the public domain.

If Wikimedia can do this to that photographer, then anyone can do the same thing to anyone else.  But thank God, it doesn't work that way!!!

Sorry.. you can keep thinking you're right but you're most definitely wrong.

The person doing the supposed infringing would be the defendant in a court case.. the person who supposedly owns the copyright is the plaintiff.

It is the plaintiff's job to show that he owns the copyright.  It's not the defendant's job to show that he doesn't.

You're 100% wrong

http://www.avvo.com/legal-guides/ugc/co … gation-faq

What are the elements of a copyright infringement claim?
A copyright infringement action requires a plaintiff to prove (1) ownership of a valid copyright, and (2) actionable copying by the defendant of constituent elements of the work that are original. To establish ownership of a valid copyright a plaintiff must show that the material is "original," which in copyright parlance simply means (i) that the work was independently created by the author, and (ii) that it possesses at least some minimal degree of creativity. Second, the plaintiff must demonstrate compliance with the statutory formalities, e.g. timely obtaining a registration. To prove legally actionable copying, a plaintiff must prove (i) that the defendant did, in fact, actually copy from the plaintiff's work (often referred to as "factual copying"), and (ii) that the works, "when compared as a whole, are adequately similar to establish appropriation."

You can jump up and down and beg and plead for your interpretation to be true but it simply isn't.  The law is very very clear on all of this. 

Until the photographer can prove that he holds a valid copyright then wikimedia is doing no wrong.

EDIT: another one:

This one from the American Bar Association.  I think they would know what they're taking about

http://www.americanbar.org/groups/young … right.html

The Basics

             An action for copyright infringement may arise where a third party violates one or more of the exclusive rights granted to copyright owners.  To establish infringement, the plaintiff must prove:  “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.”[1]

            Ownership of a valid copyright consists of:  “(1) originality in the author; (2) copyrightability of the subject matter; (3) a national point of attachment of the work, such as to permit a claim of copyright; (4) compliance with applicable statutory formalities; and (5) (if the plaintiff is not the author) a transfer of rights or other relationship between the author and the plaintiff so as to constitute the plaintiff as the valid copyright claimant.”[2]  A copyright registration certificate from the Copyright Office serves as prima facie evidence of elements (1) through (4).  If the defendant rebuts the plaintiff’s prima facie evidence, then the above elements of valid copyright ownership become essential to the plaintiff’s case.

Gary Melton wrote:
So I just want to make sure I understand you...you're telling me that if Wikimedia or anyone else decides they will declare one of your photos to be in the public domain and to use it to their heart's content without your permission or compensating you - you are totally 100% okay with that?  Just because they have some doubt?  Even though they can't necessarily prove that doubt?

I'm at a loss - I DO NOT understand why you'd be okay with someone screwing you over.  Oh, well...

I wouldn't be OK with it.  I would sue since I have proof that I own my work.  I'd be happy with the damages I'd receive.

Well, hell...we might as well throw the entire copyright system out the window...if anybody can void it just by thinking that's what they want to do.

It's very clear that you don't have any clue about how the US copyright system works.

You have a fantasy about how copyright works.. but your fantasy is not based upon any reality currently existing in the USA.

Wye wrote:
I wouldn't be OK with it.  I would sue since I have proof that I own my work.  I'd be happy with the damages I'd receive.

It's very clear that you don't have any clue about how the US copyright system works.

You have a fantasy about how copyright works.. but your fantasy is not based upon any reality currently existing in the USA.

Of the two of us, I'll bet I'm the only one who has actually hired an IP attorney (twice - for consultation concerning my publishing business).

Of the two of us, I'll bet I'm the only one who has actually filed for copyright with the copyright office (for the 7 books my company has published so far).

Of the two of us, I would trust my take (and my IP attorney's) on copyright infringement over yours.


[My take on this particular case has been more about the ethics involved than the legality of it anyway.]


And with that, I really am done with this thread...

Gary Melton wrote:

So I just want to make sure I understand you...you're telling me that if Wikimedia or anyone else decides they will declare one of your photos to be in the public domain and to use it to their heart's content without your permission or compensating you - you are totally 100% okay with that?  Just because they have some doubt?  Even though they can't necessarily prove that doubt?

I'm at a loss - I DO NOT understand why you'd be okay with someone screwing you over.  Oh, well...

No, I'm not saying I'm okay with that.  I'm saying that the legal system allows it.  And the legal system allows me to sue for damages.  That's how copyright law works.

Well, hell...we might as well throw the entire copyright system out the window...if anybody can void it just by thinking that's what they want to do.

That's exactly what you're suggesting.  You're suggesting that anyone can own any photo just by claiming that they own the copyright.  In fact, you stated earlier that anyone can own a copyright to a photo just by putting his or her name on it.  That's not how copyright works, and the copyright system would be completely useless if it did work that way.

You keep saying that only a court can decide that a photo is public domain.  But you also say that Wikimedia isn't allowed to use the photo without the camera owner's permission.  Tell me then, how could a court have the chance to declare that the photo is public domain if Wikimedia (or anyone else) didn't use it.

Brian Diaz wrote:
No, I'm not saying I'm okay with that.  I'm saying that the legal system allows it.  And the legal system allows me to sue for damages.  That's how copyright law works.

+1

Gary Melton wrote:

Of the two of us, I'll bet I'm the only one who has actually hired an IP attorney (twice - for consultation concerning my publishing business).

Of the two of us, I'll bet I'm the only one who has actually filed for copyright with the copyright office (for the 7 books my company has published so far).

Of the two of us, I would trust my take (and my IP attorney's) on copyright infringement over yours.


[My take on this particular case has been more about the ethics involved than the legality of it anyway.]


And with that, I really am done with this thread...

I'll take the word of the American Bar Association over whatever lawyer you supposedly hired thanks.

It should be clear to whomever is interested in actually knowing how these things work that you've gotten everything wrong.   Everything in the real world shows that your opinions of how copyright law works is spectacularly wrong.

Hire a better attorney next time if he's the one telling you the stuff you've been saying.

Wye wrote:
I'll take the word of the American Bar Association over whatever lawyer you supposedly hired thanks.

It should be clear to whomever is interested in actually knowing how these things work that you've gotten everything wrong.   Everything in the real world shows that your opinions of how copyright law works is spectacularly wrong.

Hire a better attorney next time if he's the one telling you the stuff you've been saying.

I can't believe how dense I've been...I FINALLY GET IT!

I'm being punked!  Come on...send in Ashton Kutcher so I can be embarrassed and we can all have a good laugh!


True or false?

1)  If I take a photograph "A", I own the copyright on photograph "A".

True or false?

2)  The photograph "A" is NOT in the public domain, since I own the copyright on it.

True or false?

3)  Since I own the copyright on photo "A", if someone uses my photo "A" without my permission, I can sue them.

True or false?

4)  If I sue the copyright infringer, I must prove that I took the photo "A".

True or false?

5)  If I prove I took the photo "A", I win the case and the infringer must pay me damages.

True or false?

6)  If I win the case, then photo "A" was NEVER in the public domain.


Since all of these statements ARE true, I AM right.

If you still don't get it, I can't help you.

Wye wrote:

Wait.. so I can establish copyright on a photo not taken by me and mark it with "© My Real Name" and that's it?

Is that what you are suggesting?

Because Mr Slater didn't take these photos (he said so himself).. he has no right to mark them with his copyright any more than I have the right to mark one of yours with mine.

True, but he's talking about what happens after you do that.

People don't have the right to ignore the copyright claim you've made, regardless of it's validity.

Wye wrote:

If that poster is an exact copy of a work that is in the public domain (say the Mona Lisa) then yes.. you can scan that poster and sell copies all you want.

The poster does not constitute a derivative work and thus enjoys no copyright of its own.

If that's true, then what's true is that "the photo within the poster has no copyright of its own."

The odds are that there will be a border with a design including the museum's name and logo, which will probably have both a copyright and a trademark and that would not be legal to copy.

The sum of the whole would be a new work.

It's similar to the idea of a copyright for a collection.

Brian Diaz wrote:

This is where your entire argument breaks down. If there is a doubt as to whether he is the copyright holder, then Wikimedia or any other private individual has every right to use the photo. If a court decides that they can't use the photo, they will have to stop and possibly pay damages. But the court may decide that the photo is in fact in the public domain, confirming that Wikimedia was right all along.

If no one ever used the photo without permission, its public domain status could never be decided in court. The usage would remain, right or wrong, only with the camera owner.

Intellectual property is a two way street. Copyright protects artists' rights to use their intellectual property, and public domain protects the public's right to use their intellectual property. That's why I can't get away with claiming to own the copyright to Beethoven's music--it belongs to you and to me and to everyone else.

And that is also why Wikimedia does have a right to use the photo (until otherwise decided in court). A guy who owns a camera cannot (by which I mean may not legally) claim to own public property without proving his rightful ownership in court.

I don't think he's talking about the law in the abstract, I think he's talking in practical terms.

Once you make a claim, you can send a takedown notice or a C/D. It changes the stakes if you've done everything like register the work and publish it with the copyright notice. When there's a dispute, lawyers will slightly different advice.

Gary Melton wrote:
I can't believe how dense I've been...I FINALLY GET IT!

I'm being punked!  Come on...send in Ashton Kutcher so I can be embarrassed and we can all have a good laugh!


True or false?

1)  If I take a photograph "A", I own the copyright on photograph "A".

True.  Which is what I've been saying all along.  You, on the other hand, have been saying you need to just put your copyright on a photo to own the copyright.  Glad to see you've come around. Also.. remember that Mr. Slater did *not* take the macaque photos (he said so himself).

True or false?

2)  The photograph "A" is NOT in the public domain, since I own the copyright on it.

True.  Which is what I've been saying all along.  Remember.. Mr. Slater did not take the macaque photos (he said so himself) so he does not own the copyright. And since nobody else owns the copyright, it is in the public domain.

True or false?

3)  Since I own the copyright on photo "A", if someone uses my photo "A" without my permission, I can sue them.

True.  Which is what I've been saying all along. Mr. Slater, even though he doesn't own the copyright is free to sue Wikimedia (and anyone else who uses his photo).

True or false?

4)  If I sue the copyright infringer, I must prove that I took the photo "A".

True.  Which is what I've been saying all along.  You, however, have been saying that the infringer must prove that you don't own the photo.  Glad to see you've come around to the correct thinking.

True or false?

5)  If I prove I took the photo "A", I win the case and the infringer must pay me damages.

Yes. which is what I've been saying all along.  If Mr. Slater (who doesn't own the copyright on these photos) can somehow convince a court that a photo that was taken by someone else (in this case not even a human) is actually his then (in a travesty of justice and a perversion of the copyright system) he will win damages.

True or false?

6)  If I win the case, then photo "A" was NEVER in the public domain.

Yes. Which is what I've been saying all along.

Since all of these statements ARE true, I AM right.

If you still don't get it, I can't help you.

I don't see what there is to not get.  Your argument above is exactly what I've been saying.  *You're* the one who has been saying differently.  This post is the first time where you're admitted to understanding what I've been saying: namely that the copyright is conferred at the moment of creation (pushing the button in this case), not when someone puts their copyright mark on the image (something not even necessary at all) and that infringer doesn't have to prove anything, it is the person who believes that his copyright is being infringed that has to prove ownership to the court(s)

Congratulations.  You finally understand reality.

Mikey McMichaels wrote:

If that's true, then what's true is that "the photo within the poster has no copyright of its own."

The odds are that there will be a border with a design including the museum's name and logo, which will probably have both a copyright and a trademark and that would not be legal to copy.

The sum of the whole would be a new work.

It's similar to the idea of a copyright for a collection.

The collection has to add something new and creative to the whole.  It is not sufficient to simply collect other works together and claim copyright on the whole.

Christopher Hartman wrote:
I am not a hypocrite.  It is just my opinion that in lieu of a person taking the photo, the copyright should belong to whoever legally possessed the device at the time of capture.

1) 'just your opinion' (or anyone else's) is entirely meaningless in the context of this discussion. The facts and the law is the only thing that holds any weight.

2) If anywhere previous to this thread you've argued that, "Whoever clicks the shutter" is the copyright owner, then yes, you are a hypocrite. Not outright saying you are; I'd have to go back and look and see what position you've taken previously.

3) Whereas there are a couple of people who are objective and consistent in their positions on who owns the copyright,  it's utterly fascinating that so many are doing an amazing job of mental gymnastics in attempting to find a way to give the photographer the copyright, completely contradicting their earlier arguments.

Wye wrote:

Gary Melton wrote:
I can't believe how dense I've been...I FINALLY GET IT!

I'm being punked!  Come on...send in Ashton Kutcher so I can be embarrassed and we can all have a good laugh!


True or false?

1)  If I take a photograph "A", I own the copyright on photograph "A".

True.  Which is what I've been saying all along.  You, on the other hand, have been saying you need to just put your copyright on a photo to own the copyright.  Glad to see you've come around. Also.. remember that Mr. Slater did *not* take the macaque photos (he said so himself).

True or false?

2)  The photograph "A" is NOT in the public domain, since I own the copyright on it.

True.  Which is what I've been saying all along.  Remember.. Mr. Slater did not take the macaque photos (he said so himself) so he does not own the copyright. And since nobody else owns the copyright, it is in the public domain.

True or false?

3)  Since I own the copyright on photo "A", if someone uses my photo "A" without my permission, I can sue them.

True.  Which is what I've been saying all along. Mr. Slater, even though he doesn't own the copyright is free to sue Wikimedia (and anyone else who uses his photo).


True.  Which is what I've been saying all along.  You, however, have been saying that the infringer must prove that you don't own the photo.  Glad to see you've come around to the correct thinking.


Yes. which is what I've been saying all along.  If Mr. Slater (who doesn't own the copyright on these photos) can somehow convince a court that a photo that was taken by someone else (in this case not even a human) is actually his then (in a travesty of justice and a perversion of the copyright system) he will win damages.


Yes. Which is what I've been saying all along.



I don't see what there is to not get.  Your argument above is exactly what I've been saying.  *You're* the one who has been saying differently.  This post is the first time where you're admitted to understanding what I've been saying: namely that the copyright is conferred at the moment of creation (pushing the button in this case), not when someone puts their copyright mark on the image (something not even necessary at all) and that infringer doesn't have to prove anything, it is the person who believes that his copyright is being infringed that has to prove ownership to the court(s)

Congratulations.  You finally understand reality.

This is EXACTLY what I've been saying from the start...it is YOU that have not been understanding reality!!

I never said that just putting your copyright on a photo makes it yours (though it is a good idea so that the world knows who's photo it is...they would not know otherwise).  EVERYONE knows that copyright is conferred at the moment of creation - that is a given, one of the first things outlined in the copyright regulations.  I have been here just under 8 years, involved in dozens of copyright threads - that is a GIVEN in EVERY copyright thread ever on MM.  The problem is that you were so dead set on being right and proving me wrong...that you didn't even pay attention to what I was saying.

In the case being discussed, my contention all along is that whether the photographer or the monkey pushed the shutter - the resulting image file is in the CONTROL of the photographer.  Since he would have to prove he took it - one of the first things the court would have to establish is does he have possession of the original files...the ones that (generally) ONLY the photographer would have possession of.  He should be able to prove that.  Then it would be a matter of testimony/depositions of any witnesses for corroborating evidence.  If he can prove that he had possession of the image files and there is no evidence to show that he did NOT take the photo...then he would win the court case, meaning the photo was NEVER in the public domain.  (There are cases where a photographer owns copyright but does not have the files is his possession...in which case copyright ownership would need to be established in other ways.  In this case - I'm pretty sure the photographer DOES have the files.)

My contention all along has been that Wikimedia has no authority or right to decide whether the photographer actually owned copyright or not, so they have no business calling the photo in the public domain...even given the statements that the photographer gave that the monkey took the photos.  The decision can only be made by a court.

If this were NOT true, then ANYONE could use ANYONE's photos without permission just by stating "I have doubt as to whether the photographer (or anyone else) is the copyright owner."  That would be like if you could just move into someone's home or drive off in their car just by stating "I have doubts as to whether the person who says this is their house (or their car) actually owns it."


EDIT:  I went back and found where I first mentioned about "marking the photo" - it's on page 4 of this thread where I said:

"Yes, and all a photographer has to do to establish copyright is mark a photo with his copyright (in the US at least).  Officially registering the copyright makes court cases easier to prove, plus makes any court cases eligible for higher awards...but it is NOT a requirement to establish copyright.

In this case, then, I'm assuming that the photographer had at least marked his photo with his copyright...and for all we know, he may have additionally had it officially registered with the copyright office.  If either or both actions occurred, then it is essentially HIS copyright until and unless an appropriate court says it isn't."

Notice that I talked about it as a alternative or addition to officially registering the copyright with the copyright office.  Both actions would create a RECORD of the copyright - not the copyright itself (that was established when the shutter was pressed).  I suppose I could have been clearer in how I said it (like used a different word than "establish"), but again, I assumed everyone in this thread knows that copyright is established when the shutter is pressed...I took that as a GIVEN.  No one could participate in dozens of MM forum threads concerning copyright and NOT know when copyright is established...no one could read the copyright regulations and not know that (and I have read every bit of the copyright regulations once or twice, and the majority of them at least 6 or 7 times).

When someone asks me what I did yesterday - I never include "well, let's see, I inhaled and exhaled several thousand times" because everyone knows that - it's a given so there's no need in mentioning it.

NothingIsRealButTheGirl wrote:
So let the dude say he was joking. Problem solved.

Unless he's too honest to lie.

Gary Melton wrote:
Edit: In fact, if you stop and think about it, that Wikimedia is declaring the photo to be in the public domain is pretty outrageous.  No one can just look at a photo, hear a story and declare "your copyright is not valid, therefore your photo is in the public domain".  No one outside the courts can make that decision.

But to get a court to make that decision, someone would have to make that claim and then someone would have to counter that claim and take it court for that decision to ever occur...no?

Gary Melton wrote:

Ya still don't believe me?  Let's try it out.

Let's suppose I tell the world that your avatar was taken by your dog...I know, because I overheard you telling someone that he did, and you were just laughing your head off about it.  So I'm maintaining that your photo is in the public domain since a dog can't own copyright, which means I'm going to use your avatar for my logo for a new business I'm starting...and I don't have to pay you a thing!

[So you're the photographer and I'm Wikimedia.]

Can  I do that?  It's not true that I overheard you say your dog took the photo, but I've got some buddies who will back me up and say you did.

So did you lose your copyright the moment I accused you?

Did your photo go into the public domain the moment I accused you?

Can anyone use your photo without permission or without compensation the moment I accused you?


The answer to all those questions is NO!  THANK GOD - the answers are ALL NO!!!


As you said, the copyright was yours the moment the shutter was snapped, however I am saying that you didn't push the shutter - your dog did!

No - you would be the injured party and you would have to sue me and prove I was wrong in court.  Until then, the copyright of your avatar would be YOURS and it would NOT be in the public domain.  Now, if me and my buddies can convince the judge and jury that you in FACT DID SAY YOUR DOG took the photo, and that there were circumstance that compelled us to believe you were telling the truth...then you WOULD LOSE your copyright and your photo WOULD be in the public domain!  On the other hand - if you can prove that you took the photo beyond a shadow of a doubt, then you would keep your copyright (having never lost it) and your photo would not be in the public domain (where it would have never been).

Do you get it now?

It doesn't even matter that the photographer originally said the monkey took the photo...he could say he was joking or make some other excuse.


The villian here is WIKIMEDIA - they, just like everyone else including me, have no right to on their own declare that someone else's photo was taken by an animal and is therefore not theirs and in fact is in the public domain.

If Wikimedia can do this to that photographer, then anyone can do the same thing to anyone else.  But thank God, it doesn't work that way!!!

I see what you're saying.

Copyright belongs to whoever simply claims it.  Circumstances do not matter UNTIL they are legally challenged.

If Wikimedia feels it is public domain, the proper course of action would have been to challenge it in court BEFORE using it.  They didn't, so now it's up to the photographer to legally protect his claim to copyright.

Brian Diaz wrote:

That's an interesting interpretation.

What if I say that I hold the copyrights to all of Beethoven's works?  By saying that I have the copyrights, I have established copyright, right?  So now I am owed compensation from anyone who plays Beethoven music without my authorization.  Cool.

And NO ONE can declare that I do not own the copyright and declare that the music is in the public domain.  A court would have to determine that.  Period...well, ellipsis.

And of course, since no one can declare that it is public domain, no one will play Beethoven music without my authorization, giving me no reason to sue them and have any court determine that Beethoven music is public domain.

Awesome.  I'm gonna be rich.

That wouldn't work.  Bad analogy.  Copyright of Beethoven's work has already been established.

It sounds like, however, anyone can claim the rights to use any photo they want.  Whether they have copyright or not.  It's up to the holder (or whoever claims to be such) to enforce their claim through the court system.  In this case, Wikimedia, by not pursuing legal rights prior to usage, are taking a possible huge risk.  If the court sides with the photographer, they and anyone else using the photos are in trouble.  If the court says otherwise, then they'll be ok.

Bob Helm Photography wrote:
Under US law only people and corporations (who are legal persons) can own copyright and there is a provision in the law regarding work created by computer without "human Involvement" which basically says that the person (corporation) controlling the computer owns the copyright. Since todays digital cameras are basically imaging computers it would seem that section of the law would apply.
Of course once lawyers and courts get involved it is anyone's guess what they decide.regarless of what the law actually says.

[citation needed]

Randal Scott wrote:
1) 'just your opinion' (or anyone else's) is entirely meaningless in the context of this discussion. The facts and the law is the only thing that holds any weight.

2) If anywhere previous to this thread you've argued that, "Whoever clicks the shutter" is the copyright owner, then yes, you are a hypocrite. Not outright saying you are; I'd have to go back and look and see what position you've taken previously.

3) Whereas there are a couple of people who are objective and consistent in their positions on who owns the copyright,  it's utterly fascinating that so many are doing an amazing job of mental gymnastics in attempting to find a way to give the photographer the copyright, completely contradicting their earlier arguments.

My opinion is never meaningless.  My opinion, however, may have no legal standing.

That won't stop me from arguing for something that I think should be the way something should be.

Slavery was legal.  Alcohol was once illegal.  We go through all kinds of changes in our legal system.  This is something that needs to be corrected, in my meaningful opinion.

Christopher Hartman wrote:
My opinion is never meaningless.  My opinion, however, may have no legal standing.

That won't stop me from arguing for something that I think should be the way something should be.

Slavery was legal.  Alcohol was once illegal.  We go through all kinds of changes in our legal system.  This is something that needs to be corrected, in my meaningful opinion.

I hear you Christopher...that is exactly where I am coming from in many of my forum arguments.  For example: the paparazzi are basically legal, but that doesn't make it right (IMHO) to harass people, to make their lives miserable, to put their lives in danger, etc. just so somebody can make a buck.

In the subject case of this thread, the photos in question are (IMHO) the work of the photographer one way or another...despite what the law may or may not say on the subject (whether the monkey took them, or he took them himself and said the monkey took them to make a more interesting story to go with the photos).  My overriding thought here is that the photographer is getting unnecessarily screwed (given what I know about the incident).

Hell, the American Revolution was illegal...people should read what the Declaration of Independence has to say!  Yet I'm pretty happy that a whole bunch of people broke the law all those years ago!