Larry Lodwick wrote:
Did anyone think to get a model release, I mean a monkey release!

i didn't realize a self portrait needed a model release!

L A U B E N H E I M E R wrote:

i didn't realize a self portrait needed a model release!

I didn't think you needed a release to use photos from a zoo either. If we're going to pretend that this monkey has the same rights as humans, one could argue that he has no reasonable expectation of privacy, as he was photographed in a place where people go just to photograph animals.

I think it's becoming pretty clear that the strongest evidence against the photographer is what he himself said. Which is a bit of a Catch-22, since the image wouldn't have been anywhere near as interesting without the story attached to it.

Frankly, the smartest thing he could have done - and it's too late now - would have been to say that he made up the original story about it being a self-portrait. A photographer with a different body of work could have even gotten away with it without any loss of face. I make no bones at all about the fact that I lie to the viewer, and even hint that in my artist statements. I could title the image 'Monkey Selfie' and claim I took it without anyone batting an eye, because I have a history of telling people I'm full of shit, even when I'm not.

But this guy isn't in that position, so nobody is going to believe that he's suddenly doing that now.

Yes, this is a partial reversal I've what I said before. I've had more time to think about it, and I've changed my stance. Before I said that it was definitely his photos, at least in part. But after hearing the arguments in this thread, and reading the supporting evidence, I'm now saying that it definitely would have been his photo if he had handled it differently.

NothingIsRealButTheGirl wrote:

I think that has come up and the answer is the person who pushed the button

Completely 100% wrong.
Unless the person pushing the button added any creative input, if the camera is sitting on a tripod and the person is nothing more than a meat-trigger, they retain no authorship.

Photos by Stan wrote:
You just proved yourself wrong here ...
--  INSTANT OF CREATION   ---
that is the EXACT moment when the button pusher ACTUALLY decided to push the button down ... therefore he/she is the creator

Yeah, I would get so cocky telling other people they are wrong

I'll let you choose which (if either) to believe.

Good idea, let's go with the authority on the subject, the copyright office.

And here is the word from the US copyright office as of last year when this very topic came up for the nth time on model mayhem. I actually took the time to email them for a clarification.

First, we apologize for the long delay in responding to your inquiry. Initially, your inquiry was given to one of our new Information Specialists who is still in training. That specialists needed to consult a trainer for help in answering the question. Unfortunately, the email was subsequently misplaced and not found until yesterday.

The answer is relatively simple, but since you've waited so long, we'll give you the full answer, plus the historical background to the answer. The short answer is in the paragraph below. But, if you're interested in the legal history, we've included the background for you. Again, our sincerest apologies for such a lengthy delay in responding to you.

508.01 of Compendium II of Copyright Office Practices states, that to be entitled to copyright registration, a photograph must contain at least a certain minimum amount of original expression. Generally, original photographic authorship depends on the variety and number of the elements involved in the composition of the photograph.  However, the nature of the thing depicted or the subject of the photograph, as distinguished from its composition or arrangement, is not regarded as a copyrightable element.  Original photographic composition capable of supporting registration may include such elements as time and light exposure, camera angle or perspective achieved, deployment of light and shadow from natural or artificial light sources, and the arrangement or disposition of persons, scenery, or other subjects depicted in the photograph.

This long standing practice at the Copyright Office, gets its start from the Supreme Court decision of Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884).

Napoleon Sarony filed a copyright infringement suit against the Burrow-Giles Lithographic Company, which had marketed unauthorized lithographs of Sarony's photograph of writer Oscar Wilde, titled "Oscar Wilde No. 18." Sarony was a well known photographer in the 19th century. Burrow-Giles Lithographic Co. argued, photography was merely a "mechanical process" which does not enjoy copyright protection.

In this case, the Supreme Court upheld the trial courts findings that Sarony had, "entirely from his own original mental conception, to which he gave visible form by posing the said Oscar Wilde in front of the camera, selecting and arranging the costume, draperies, and other various accessories in said photograph, arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, suggesting and evoking the desired expression, and from such disposition, arrangement, or representation" produced the photograph. This control that Sarony exercised over the subject matter, in the view of the Court, showed that he was the "author" of "an original work of art…"

In looking at the mechanical process of taking a photograph and deciding on who is the "author" of a photograph, the Supreme Court quoted a British court decision in Nottage v. Jackson, 11 Q.B. Div. 627, involving a case that aimed at determining who is the author of a photograph.  Counsel argued, "…the person who has superintended the arrangement, who has actually formed the picture by putting the persons in position, and arranging the place where the people are to be-the man who is the effective cause of that." The Justices in that court agreed; Lord Justice COTTON said: 'In my opinion, 'author' involves originating, making, producing, as the inventive or master mind, the thing which is to be protected, whether it be a drawing, or a painting, or a photograph;' and Lord Justice BOWEN said that the author is the man who really represents, creates, or gives effect to the idea, fancy, or imagination."

In the decision and narrative of the Supreme Court in the Burrow-Giles v. Sarony case, the court, as far back as 1884, recognized that authorship of a photograph was not the mere pushing of a button, but rather the authorship of a photograph lies in the control of numerous elements chosen by the photographer that leads to the resulting image.

Sincerely,

John A. Saint Amour, Supervisory Copyright Information Specialist
U.S. Copyright Office
Attn: Public Information Office-LM401
101 Independence Avenue, S.E.
Washington, DC  20559-6000
Email: [email protected]
Phone: 877-476-0778 (toll free) or 202-707-5959         
Fax: 202-252-2041
Website:  www.copyright.gov

AJScalzitti wrote:
Well that solves that

http://pdnpulse.pdnonline.com/2014/08/m … rules.html

(or does it?)

You mean that the sensible, logical, dare I say obvious answer that I've been talking about all this time is actually the RIGHT answer?

Holy mumbo jumbo!

Who'd have thunk?

I'm gobsmacked I tell you.. gobsmacked.

Wye wrote:

You mean that the sensible, logical, dare I say obvious answer that I've been talking about all this time is actually the RIGHT answer?

Holy mumbo jumbo!

Who'd have thunk?

I'm gobsmacked I tell you.. gobsmacked.

Oh I was saying the same as you, but I suspect there will still be a trial

AJScalzitti wrote:

Oh I was saying the same as you, but I suspect there will still be a trial

Understood and agreed.

But it's bordering on a truism anyone can sue for anything.. and any idiot can get himself all the way to a trial.

Doesn't make him any less wrong or any less an idiot.

AJScalzitti wrote:
Well that solves that

http://pdnpulse.pdnonline.com/2014/08/m … rules.html

(or does it?)

Thank you ... my point all along.  Just because a photo has been taken doesn't mean that it will always have a copyright on it.

Christopher Hartman wrote:
I think it's a shame that these photos may not be copyrighted by the owner of the camera.  It's his camera.  The monkey grabbed it, ran off with it, took photos, and the owner of the camera got it back.  They should belong to him.

I say it should be whoever owns the monkey.

Mikey McMichaels wrote:
The only thing that doesn't have a copyright is the original raw file. Any derivative work made from that has a copyright.

You'd have to give it more than just a 'polish'

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

a piece of driftwood even if polished and mounted is not registrable.

Mikey McMichaels wrote:
The only thing that doesn't have a copyright is the original raw file. Any derivative work made from that has a copyright.

The photographer has a case and will be successful if they have a lawyer that understand the difference between raw and JPEGs. The thing is, once they make that case, the use of the image will stop and it won't get to court, so it's not going to be tested.

I'm not following your logic here.

A change in the file format would not be classified as derivative work.  Whatever work is performed needs to be fairly substantial.  Retouching doesn't count.  Cropping, black and white conversions, etc, are not derivatives if i recall.

NothingIsRealButTheGirl wrote:

I say it should be whoever owns the monkey.

I disagree.  But I can see a case where a release could be needed from the owner.

Christopher Hartman wrote:
I disagree.  But I can see a case where a release could be needed from the owner.

Whoever feeds the monkey?

Robb Mann wrote:
Settled. Still kinda confusing.

http://www.wtop.com/289/3686974/Hey-Whats-Up

What if I train the monkey to take pictures?

--

And how is an x-ray unprotectable when visible light photos are?

NothingIsRealButTheGirl wrote:

What if I train the monkey to take pictures?

--

And how is an x-ray unprotectable when visible light photos are?

If you train the monkey its just the same as training an assistant... beyond a "work made for hire" situation the monkey would be the author and the copyright office isn't recognizing the monkey's human rights... just yet. >>> Perhaps if you hired the monkey...

Robb Mann wrote:
Settled. Still kinda confusing.

http://www.wtop.com/289/3686974/Hey-Whats-Up

In addition to animals, the U.S. Copyright Office says copyrights also cannot be registered for "works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author."

What about mechanisms like Camera Axe or similar triggers that respond to stimuli such as sound or light? Not sure whether that falls under the bolded stipulation or not.

Christopher Hartman wrote:

I'm not following your logic here.

A change in the file format would not be classified as derivative work.  Whatever work is performed needs to be fairly substantial.  Retouching doesn't count.  Cropping, black and white conversions, etc, are not derivatives if i recall.

It's not a change in file format.

A RAW image and a JPEG don't look even vaguely alike.

Retouching definitely counts.

NothingIsRealButTheGirl wrote:

What if I train the monkey to take pictures?

--

And how is an x-ray unprotectable when visible light photos are?

I bet it's a medical x-ray, rather than an "artistic x-ray"

Roy Hubbard wrote:

Robb Mann wrote:
Settled. Still kinda confusing.

http://www.wtop.com/289/3686974/Hey-Whats-Up

What about mechanisms like Camera Axe or similar triggers that respond to stimuli such as sound or light? Not sure whether that falls under the bolded stipulation or not.

read my large post above.
Copyright isn't about who is pushing the button. Copyright is about who has creative input into the work. If you set up a camera to take pictures based on some stimuli like sound or light, you are still causing that, you're still the creative author of the work.

In this case, none of that happened. A monkey stole his camera and took the pictures completely independent of his creative input. This might be a very different situation if the person set something up, like a special space for monkeys to try and take photos, and trained them or encouraged them to do so.

But in this instance, no.

NothingIsRealButTheGirl wrote:
Landmark Ruling: Animals Can Legally Be Considered Victims, Just Like Humans

https://www.thedodo.com/landmark-ruling … 96943.html

all animals?

how about a roach or mosquito? Would they be considered in this law too

A-M-P wrote:
all animals?

how about a roach or mosquito? Would they be considered in this law too

Time will tell, I guess.

Now that you ask, it sounds like it only applies in cases where something is already considered a crime of one kind or another, like starving a bunch of horses to death. It just lets them count each horse as a separate 'count.'

So probably no monkey copyrights, yet.

Mikey McMichaels wrote:
A RAW image and a JPEG don't look even vaguely alike.

Retouching definitely counts.

Umm...how do you figure?  My JPEGs created from RAW images can look EXACTLY like my raw images if I choose it to be so.

I think I understand you though.  You think a RAW file has NOTHING applied to it.  This is sort of true in a certain context.  In MY context, I use Nikon and use Nikon software.  The my RAW/NEF files contain camera settings of my choosing.  They are imbedded in the file.  My Nikon software recognizes these settings and they are used by default.  Since it is a RAW/NEF file, I can change many of those settings if I choose to.  Or I can just have it converted to JPG using the settings I had enabled at capture.

Those JPGs will look exactly like the RAW file.

As for retouching, I'm pretty sure you're wrong.  But it'll depend on what you are defining as retouching.

To me, retouching is fixing pimples, color adjustments, brightness, contrast, etc.  Conversions to black and white, cropping, etc, are not retouching but they also do not qualify as a derivative either...if I recall correctly.

in otherwords...let's use the monkey photo as an example.  Since it is, currently, considered public domain.  You cannot take that photo, crop it, change it to black and white, and fix a hair on his nose, and do selective color to return the brown in his eyes, and then copyright that photo as your own.

But, if you took that monkey photo, stripped him out of the background, placed it someone else's body while riding a motorcycle along the California coast, you could copyright that image.

Christopher Hartman wrote:

Umm...how do you figure?  My JPEGs created from RAW images can look EXACTLY like my raw images if I choose it to be so.

I think I understand you though.  You think a RAW file has NOTHING applied to it.  This is sort of true in a certain context.  In MY context, I use Nikon and use Nikon software.  The my RAW/NEF files contain camera settings of my choosing.  They are imbedded in the file.  My Nikon software recognizes these settings and they are used by default.  Since it is a RAW/NEF file, I can change many of those settings if I choose to.  Or I can just have it converted to JPG using the settings I had enabled at capture.

Those JPGs will look exactly like the RAW file.

As for retouching, I'm pretty sure you're wrong.  But it'll depend on what you are defining as retouching.

To me, retouching is fixing pimples, color adjustments, brightness, contrast, etc.  Conversions to black and white, cropping, etc, are not retouching but they also do not qualify as a derivative either...if I recall correctly.

in otherwords...let's use the monkey photo as an example.  Since it is, currently, considered public domain.  You cannot take that photo, crop it, change it to black and white, and fix a hair on his nose, and do selective color to return the brown in his eyes, and then copyright that photo as your own.

But, if you took that monkey photo, stripped him out of the background, placed it someone else's body while riding a motorcycle along the California coast, you could copyright that image.

I follow what you're saying about the RAW/NEF workflow. The thing is when you make the final JPEG without changing anything from the camera's settings, you're not making a JPEG that looks like the RAW photo, you're making a JPEG look like the JPEG that's embedded in the RAW photo that's displayed in the LCD.


I'm going to guess that you've never seen a RAW photo because you probably don't have any way to view one.

The OEM software and Lightroom/PS will always display a converted image even if it's with default settings, but that's not what the RAW file looks like.


Sean Baker can probably give you a more detailed explanation and maybe even show you a RAW image.

Photos by Lorrin wrote:
Using the same logic.

A camera using a intervelometer -  no  copyright the intervelometer owns it.

or how about a trail camera.

Exactly.  I find the following statement concerning when it comes to using any type of triggering tool to fire the shutter.

http://www.wtop.com/289/3686974/Hey-Whats-Up

"
In addition to animals, the U.S. Copyright Office says copyrights also cannot be registered for "works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author."

Heck camera's these day's have the smile to take a picture feature.  How do you determine copyright there, the first person to smile?

Crazy.

Cheers
Ben

Photos by Lorrin wrote:
Using the same logic.

A camera using a intervelometer -  no  copyright the intervelometer owns it.

or how about a trail camera.

Did the intervalometer start itself?

Mikey McMichaels wrote:

I follow what you're saying about the RAW/NEF workflow. The thing is when you make the final JPEG without changing anything from the camera's settings, you're not making a JPEG that looks like the RAW photo, you're making a JPEG look like the JPEG that's embedded in the RAW photo that's displayed in the LCD.


I'm going to guess that you've never seen a RAW photo because you probably don't have any way to view one.

The OEM software and Lightroom/PS will always display a converted image even if it's with default settings, but that's not what the RAW file looks like.


Sean Baker can probably give you a more detailed explanation and maybe even show you a RAW image.

You couldn't be more wrong.  I have ACR via Photoshop.  Photoshop IGNORES the camera parameters that are saved with the file.  At this time, I believe only Nikon's software reads the in-camera settings and applies them correctly.  It has nothing do with an imbedded JPG within the RAW file. The RAW file, using Nikon's software, processes it based on IN CAMERA settings...unless I change it. Using an application such as ACR, since it doesn't apply in camera settings, you are essentially FORCED to make adjustments IF you want to try to make it look like how it was in the camera.

Either way, it doesn't matter.  That process won't qualify as a derivative of work to be copyrighted.

if that were true, then you could pick ANY public domain image.  Make sure no one has done a b/w conversion, then perform one yourself and copyright it.  Now no one but YOU can use that Public Domain image in black and white?  Do you see how silly that is?

NothingIsRealButTheGirl wrote:

Did the intervalometer start itself?

So that's it?

My question now is, who turned on the camera?  The photographer or the monkey?

A-M-P wrote:

NothingIsRealButTheGirl wrote:
Landmark Ruling: Animals Can Legally Be Considered Victims, Just Like Humans

https://www.thedodo.com/landmark-ruling … 96943.html

all animals?

how about a roach or mosquito? Would they be considered in this law too

Probably only the furry cuddly ones. But, then again, is an insect an animal? Is a bacterium an animal?

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

If you don't have it in writing that all work product at a shoot belongs to you or the company, then technically the person that presses the button owns copyright. IMO.

I would invest in a remote trigger if I were you.

Christopher Hartman wrote:

You couldn't be more wrong.  I have ACR via Photoshop.  Photoshop IGNORES the camera parameters that are saved with the file.  At this time, I believe only Nikon's software reads the in-camera settings and applies them correctly.  It has nothing do with an imbedded JPG within the RAW file. The RAW file, using Nikon's software, processes it based on IN CAMERA settings...unless I change it. Using an application such as ACR, since it doesn't apply in camera settings, you are essentially FORCED to make adjustments IF you want to try to make it look like how it was in the camera.

Either way, it doesn't matter.  That process won't qualify as a derivative of work to be copyrighted.

if that were true, then you could pick ANY public domain image.  Make sure no one has done a b/w conversion, then perform one yourself and copyright it.  Now no one but YOU can use that Public Domain image in black and white?  Do you see how silly that is?

ACR can't read certain flags within the raw file, but when you open a raw file in ACR, you're not actually seeing the RAW file, you're seeing the RAW file with contrast curves and other things that are done before all of the slider controls. The Nikon software is doing the same thing. You can't get either to show you the raw image.


If you made a B&W conversion of a public domain image, you'd only have a claim to you specific version, not all B&W versions, as everyone would make them differently.

Christopher Hartman wrote:
My question now is, who turned on the camera?  The photographer or the monkey?

Does the camera go into timer mode when it's turned on?