OP – The Blog

August 13th, 2014

Creativity vs. Wikipedia

Posted By Kevin Schafer
Crested Macaque, Sulawesi. COPYRIGHT David J. Slater

Crested Macaque, Sulawesi. COPYRIGHT David J. Slater

By now, you will all have seen the image. You will probably also have heard the many amusing, often ridiculous, news reports about the “monkey selfie” and how he took this picture of himself, one now seen around the world. What you may not have heard is the darker part of the story, one of the enterprising and creative photographer who is responsible for the creation of this picture, and how Wikipedia has dismissed his claims of authorship.

The picture was taken in 2011, when David Slater visited the Indonesian island of Sulawesi. He was fortunate enough to spend several days in the company of the critically endangered Black Crested Macaque, and took hundreds, if not thousands, of images. In fact, over those few days, he grew quite comfortable with the animals, as they did with him. To try and capture a unique close-up angle, he tried something quite creative (and brave, considering the value of his cameras); he set the camera up on a tripod, adjusted the lighting, composition, depth-of-field, flash settings and focus, and watched to see what the macaques would do.

Not surprisingly, they played with the camera, which was shiny, reflective and made a lot of funny noises. In the end, they also took a lot of pictures, including a few of themselves. This was precisely what Slater hoped would happen, and what he had orchestrated. It is NOT a “selfie.”

After some of the images were published, someone submitted one of the best shots (seen above) to Wikipedia for its page on this macaque species. The trouble is, they posted it as Public Domain, meaning that anyone could use the picture anytime, in any way they liked. Slater, whose income, and substantial conservation work, is based on his photography, asked them to take it down, claiming that he asserted copyright of the image. In the end, Wikimedia refused, saying that since the monkey “took the picture,” Slater could not copyright it—monkeys, as non-humans, cannot own copyright.

This is utter nonsense. Slater had the idea, the vision and the technical ability to set these pictures up—they simply would never have been taken without his creative initiative. What’s more, a photograph today no longer ends with the push of the shutter.There is also a tremendous amount of creative effort that goes into postproduction, including the cropping, rotating, toning and color adjustments of the original RAW images. These efforts, along with the many decisions mentioned above, clearly present a sufficient degree of creative contributions to support Slater’s, or any photographer’s, assertion of copyright.

I shoot rare animals using camera traps, as do many others. I have photographed endangered species I never saw, and that took their own pictures “by accident.” Am I now to expect that those pictures will also be placed in the Public Domain? This may all sound trivial, but rest assured, it is only the latest blow to a field—wildlife photography—that is already under assault from free downloads and uncontrolled “sharing.” My profession for the last 30 years has almost evaporated.

Don’t get me wrong, I think Wikipedia is a wonderful institution. However, it is their stated belief that ALL information, all content, should be utterly free. Quoting their website: “Imagine a world in which every single human being can freely share in the sum of all knowledge.” This sounds like a blow for Freedom—but it is, in fact, a knife in the back of creative people everywhere.

 

Please leave a comment

  1. International League of Conservation Photographers Says:

    As an organization that aims to promote and protect the interests of all photographers, iLCP strongly supports David Slater and all photographers whose images are being used without their explicit consent by groups like Wikimedia. For our official statement on this issue please see: https://drive.google.com/file/d/0B2CVtFFEp8nJaXIyTS1McDJrZDA/edit?usp=sharing

  2. Kaz Says:

    I think one big thing that I haven’t seen mentioned (and correct me if I’m wrong) but does this now mean that a shutter that is triggered by something non-human like a light flash, sound, or a broken beam for high speed photography would now be considered public domain? If a person set up the camera in those conditions, but some lightning triggered it, thats not a person… That seems wrong to me

  3. Timothy Brown Says:

    Wildlife photography in general depends as much on the curiosity of the animal as the skill of the photographer. Without the animal’s instinct, the picture is not as good. But without the photographer, THERE CAN BE NO PHOTOGRAPH. That is crucial.

  4. Marie Read Wildlife Photography Says:

    A couple of questions: Where were the images first published, and did that publication not mention (in credit line) that David Slater took the photos? This surely would establish copyright? Who submitted the shots to Wikipedia (and we find that person and string them up?!!!)

  5. Michael Reilly Says:

    Wikipedia itself defines copyright as

    “Copyright is a legal right created by the law of a country, that grants the creator of an original work exclusive rights to its use and distribution”.

    I think it is clear that by setting up the equipment, establishing a rapport with the animals, and then allowing them to experiment with his equipment, Slater “created” the photograph. The copyright is owned by whoever created the photograph, which is not the same as whoever “took” the photograph. As Kaz said, there may not be a person who “took” the photograph.

    Copyright comes into existence automatically as part of the act of creating the work. It has nothing to do with where it is first published.

    Wikipedia is wrong to insist that there is no copyright in this photograph.

  6. Kevin Schafer Says:

    Kaz – Thanks for your comments. I have been in discussions with Wikimedia on this issue and what they seem to suggest – if taken at face value – is that any non-human agent that trips the shutter removes copyright protection from the photographer, whether it is a robot, a camera trap, or a monkey. They say this is enshrined in US copyright law, but the implications are profound. That would suggest that all of us not using our fingers on the shutter could have our images placed in Public Domain. Dangerous, indeed.

  7. Kevin Schafer Says:

    Hi Marie, The pictures were first published a few years ago, including in Ranger Rick magazine here in the US. I agree, that would seem to establish copyright, but Wikimedia seems to have the power to make this decision unilaterally, placing pictures into the Public Domain at their will.

  8. Bob Teskey Says:

    As presented above, the photographer’s intent and planning are clear-cut and supports his claim of copyright. No different than the use of triggers/intervalometers/self-timers. The photo of Usain Bolt at the finish line with a lightning bolt in the sky was obtained by trigger, and has been copyrighted.

    Another version of the story on the internet is that the camera was left unattended and the monkey simply picked it up and took several pictures, including the “selfie”. If that is true, there is no intent nor planning, and therefore no claim for copyright. In most countries, only a human can claim initial copyright (it can be assigned later), so an accidental photo caused by an animal is generally not copyrightable.

    Ownership of the equipment used is irrelevant in the claiming of copyright.

    A witness or a video recording of the set-up would have been an iron-clad demonstration of intent. Maybe the monkey’s other photos show evidence (an angry Slater trying to get his camera back would go against the above story). Failing any of that, Slater’s version of events should be respected.

    I would argue that this is another reason to shoot RAW! Secure the RAW file in a safe place, where the Wikipedias of the world cannot get at it. Process enough to make a “derivative work” (cropping?) and only show the derivative work. Derivative works are copyrightable, provided a previous copyright was not infringed on to make it.

  9. Kevin Schafer Says:

    Bob – Thanks for your comments. My understanding from conversations with the photographer was that early internet /news reports stressed the “selfie” idea, and diminished his input. (He may even have encouraged that himself for its novelty value.) But these images were the result of his idea, creative impulse and direct intent. Since I shoot a lot with camera traps, this issue has made me sit up and take notice.

  10. Ian Plant Says:

    Hi Kevin, interesting as usual. This topic breeds a lot of intense and emotional opinions, so I’m not going to wade in except to say that the US Copyright Office just recently opined on this issue (in the abstract, mind you), stating that a “a photograph taken by a monkey” is not eligible for copyright protection (source: http://www.nbcnews.com/tech/social-media/monkey-selfie-cant-be-copyrighted-u-s-regulators-confirm-n186296). Incidentally, this issue is not a novel one, as over the years a whole host of animals have been given artistic implements with the hope that they would make art (including paintings made by elephants, turtles, and cats) – and copyright protection has been denied in these instances. So I think it is fair to say that, whether one likes it or not, Wikipedia is relying on a solid interpretation of the existing law. Of course, just because they might have the legal right to assert that the photo is in the public domain, it is not clear to me that they should. I understand that Wikipedia is fairly vigorous in their efforts to prevent censorship of material posted to their site, but I’m not sure how this case has anything to do with censorship, so it seems to me that they are asserting their rights simply because they can. In the end, the courts are going to decide this issue, but unfortunately the photographer likely has an uphill battle.

  11. Kevin Schafer Says:

    Ian – Thanks for weighing in. I think your point is a good one : should Wikimedia be the arbiter – and final authority – on what should be in the public domain and what should not? I find it jarring for a private entity to usurp the rights to an image based on their interpretation of events and news coverage. As a guy who uses various remote devices to trigger cameras, I see a danger to my own livelihood here, not based on a legal challenge to my right to copyright, but essentially on Wikimedia’s whim. Their position is faulty in my view, but yes, it will ultimately be up to the courts to decide.

  12. Ian Plant Says:

    Kevin, I don’t think that is an accurate characterization of the issue. Wikimedia’s “whim” is not now, nor ever will be, “the arbiter and final authority on what should be in the public domain.” They are subject to copyright law just like everyone else, and if a photo protected by copyright law is wrongfully placed in their Commons repository, they can be hauled into court, sued for violating someone’s intellectual property rights, and forced to pay damages. The “final authorities” are copyright statutes, and the government officials and courts charged with interpreting and enforcing those rights. If Wikimedia’s legal position proves to be accurate on this issue, the real problem would be that copyright law doesn’t extend to the facts presented by this case.

  13. Kevin Schafer Says:

    Fair enough, Ian. However, refusing to remove the picture after the photographer’s assertion of copyright constitutes a de facto usurpation of the copyright statutes. The picture is now in the public domain, and the quite substantial burden of proving creative ownership now falls on the photographer (who has little money and lives in the UK). Shouldn’t his asserted rights be protected by default, and the decision on copyright made by a legal authority, and not by a private company, e..g Wikimedia? This is all particularly galling since the Wikimedia decision was largely based on inaccurate news reports that suggested that the monkey took the pictures without human “creative input.” Not so.

  14. Ian Plant Says:

    Kevin, you know I love you man, but you are making a bit of a mess of the law and the facts here! Just to be clear, I’m not taking sides, but rather trying to provide a sober assessment of the legal realities of this case (based on my almost ten years as a lawyer before becoming a professional photographer). Frankly, I think the facts of this case are very unique – this is the sort of thing that makes for a great law school exam hypothetical – and therefore are not likely to have broader implications for the rest of us. The only reason I’ve jumped into this debate is that there have been a number of erroneous statements made by you and others regarding the law and the facts, and everyone seems to have made up their minds based on what they think the law should be, and not based on what the law actually is. Knowing your rights – your ACTUAL rights, not an idealized version of them which don’t exist in reality – is very important.

    So here it goes – my quick and dirty attempt to bring some clarity to the law and facts of this case. Remember, I’m not taking sides, just trying to clarify so people understand better what is really going on.

    Just because Wikimedia says there is no copyright doesn’t make it so – their “determination” has no legal value. And just because the photographer says there is a copyright doesn’t make it so, either. Copyright law in the relevant jurisdiction determines whether he has a legally recognized creative ownership right to this photo. The burden of proving creative ownership is ALWAYS on the person asserting creative ownership; if someone steals your photos, the law doesn’t automatically step in and punish the wrongdoer – you need to sue to protect your rights. And in many jurisdictions (including the US), you have to take the additional step of officially registering your copyright to ensure that you have a full set of legal remedies available to you.

    Wikimedia is not usurping anything – they rely on legal precedent when making a determination as to whether something is protected by copyright or not. If they get it wrong, they can be sued for violating someone’s copyright – and most likely, so can anyone relying on their mistaken determination. Their decision isn’t legally binding in the least. I’m not defending Wikimedia – I think they could have been more sensitive to the photographer’s interests, as I don’t think this case implicates their broader anti-censorship stance – but I also think it is important to correctly characterize what is going on here. And I should point out that Wikimedia actually makes a real effort to follow the law – every photo in their Commons repository is accompanied by either a release or license from the photographer if the photo is protected by copyright, or a detailed multi-jurisdictional legal analysis as to why the photo is not subject to copyright protection. Efforts to portray Wikimedia as a bunch of commies engaged in an evil plot to destroy intellectual proper rights seems far afield from what is really going on here.

    I think that a lot of the misunderstanding stems from this idea of the “public domain” – as if it were a real place – and the notion that somehow Wikimedia “placed” the photo in the public domain. What public domain really means is that something isn’t protected by legally recognized intellectual property rights (copyright, trademark, etc.). What’s happened here is that someone uploaded the monkey selfie to Wikimedia, asserting that the photo wasn’t protected by copyright, and Wikimedia agreed. So yes, the photo is now on the Wikimedia Commons, and anyone who wants to can download it and use it – but if Wikimedia has got the law wrong, then they and everyone else who have downloaded the file might find themselves paying damages to the photographer. But as I’ve argued in one of my past OP blog posts, anytime you put a photo on the Internet, you run the risk of third parties downloading it and using it without your consent. In either case – whether Wikimedia gets a hold of your photo or simply the Internet at large – you have to sue to protect your rights. And if Wikimedia has interpreted the law correctly here, they haven’t stripped Slater of any rights at all – he simply had none to begin with.

    Regarding the facts of this case, your characterization that earlier news reports were inaccurate is seemingly based solely on the fact that you personally believe Slater’s version of events. As far as I know, only Slater and the monkey know what really happened (and so far, the monkey isn’t talking). There are two facts not in dispute, however, that will likely be very important to a reviewing court if this ever goes to trial, and that may ultimately be insurmountable hurdles for Slater: (1) the monkey knocked the camera over, and (2) the monkey, through random interaction with the camera (and with absolutely no input from the photographer), triggered the shutter. That means that the photographer did not choose the composition, or the moment when the shutter was triggered. Composition, and choosing the “decisive moment,” are obviously two very important parts of the creative photographic process (some, including myself, would argue that they are the most important parts). So even if you accept everything that Slater has said as true, he still has troubles under the existing law – his contribution of “creative input” at the onset may not be sufficient to overcome the fact that the forces of nature ultimately intervened, and he lost complete control over the framing and timing of the subsequent photographs.

    Just as a reminder, this is not my opinion as to what I think the outcome should be, just my opinion as to what the outcome is likely to be. An opinion, mind you, that is seemingly shared by the US Copyright Office – hence my original comment. And while this case might not ultimately be decided by US copyright law – UK law seems more likely – I don’t expect that the law will vary much between the two countries.

    But I will tip my hand regarding one of my opinions about this case: I don’t see it as a good vs. evil, David vs. Goliath fight, or as a broader assault on the intellectual property rights of photographers everywhere. Rather, I see it as nothing more than a a very unique set of facts that has revealed a wacky, narrow crack in the existing law – into which the monkey selfie photo has squarely fallen. It’s really too bad for Slater, but unlikely to be the end of the world for him or the rest of us. The irony of this case is that the photo would unlikely be in such high demand but for the fact that it is a “monkey selfie” – its commercial appeal stems from the same set of facts which make it difficult for Slater to assert copyright ownership. But all the resulting publicity certainly can’t be bad for business!

    P.S. I’m happy to discuss and clarify other aspects of the law.

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