Monkey Copyright… of all the juxtapositions of words; I never thought I’d be entering that particular two word combination into Google. This particular search combo was prompted by (what else) a selection of updates in my twitter feed about a monkey that took a selfie and a takedown notice for the photo in question. Over here it’s ‘Silly Season‘ so my initial assumption was that this was either a hoax, or the particularly florid work of some overheated PR company attempting to corner the press cycle for some film or other.
Nope, monkey copyright is the latest entry in the debate about what can or cannot be copyrighted. Or to be more accurate, the endless tit-for-tat of takedown notice and rebuttal that characterizes the use of creative works in the digital age. Frankly, it’s also another entry in the sorry file of arrogance, hubris and dogma that the self appointed guardians of the internet succumb to on an all too frequent basis.
Here’s the facts: In 2011, David Slater a British professional wildlife photographer based in Gloucestershire (in the UK) took a trip to Sulawesi, Indonesia. This trip was for the purpose of taking wildlife photos. As a professional photographer, he clearly intended to profit from this endeavor by selling reproduction rights to the photographs that he took. As part of his trip, he decided to try and take photographs of the Crested Black Macaque, a rare species of primate confined to the islands that make up that part of Indonesia. In fact, he actually shadowed a troop of Macaques in the jungle, for three days. He enlisted the help of a local guide to assist in this effort. He was successful in his photography; returning home with a series of spectacular shots that showcase the species in their natural habitat. If you want to see what those photographs look like, I recommend you visit his website – respecting the source of the images that some of you may already be aware of.
On the 11th July 2011, a version of one of those images was uploaded to Wikimedia Commons, the “database of freely usable media files” by a contributor named Sandstein. The file “Macaca nigra self-portrait.jpg” is the subject of a request for removal by David Slater, who asserts that he has the copyright of the image. Mr Slater discovered the use of the image recently when searching for further images of Black Crested Macaques. On Wednesday of this week, Wikimedia came forth with their considered opinion of his request. I’m reproducing their comments here:
A photographer left his camera unattended in a national park in North Sulawesi, Indonesia. A female crested black macaque monkey got ahold of the camera and took a series of pictures, including some self-portraits. The pictures were featured in an online newspaper article and eventually posted to Commons. We received a takedown request from the photographer, claiming that he owned the copyright to the photographs. We didn’t agree, so we denied the request.
The basis for their refusal is as follows: Under the image itself (Which I am not going to link to) is this statement
This file is in the public domain, because as the work of a non-human animal, it has no human author in whom copyright is vested
They further state:
To claim copyright, the photographer would have had to make substantial contributions to the final image, and even then, they’d only have copyright for those alterations, not the underlying image. This means that there was no one on whom to bestow copyright, so the image falls into the public domain
In US copyright law non-humans can’t hold copyright, so by Wikimedia’s calculation it must be in the public domain. Why? Well according to Wikimedia, the macaque took the picture.
I’m not joking.
The basis for their claim is this newspaper article in The Telegraph (a brief interview with Mr Slater in 2011). I will now disassemble this dismissal of Mr Slater’s rights. In my opinion, Wikimedia’s attitude here towards somebody’s creative endeavors is appalling.
The first problem is the casual assumption that US law is the only one that applies here. Mr Slater is British and operates from the UK so I’m fairly certain that jurisdiction here is with UK law. Newsflash Wikimedia, you accept media uploaded from users around the globe. You should not consider that US law is the only one that applies. What does UK copyright legislation have to say? Well there’s nothing specific about non-humans, but UK law states that the author of computer generated works “shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken” Now these days, a camera is a very sophisticated computer that processes the information taken off a sensor. So this clearly is the applicable part of UK law. It took me about 15 minutes to find the relevant clause by the way. I’m just saying.
Now even if the test is on the basis of US copyright law, there’s still a big problem. Because Wikimedia are relying on quotes from a small filler article in a UK national newspaper as the basis for their assertion that the monkey took the picture. If the definition of “taking a picture” is upheld as “pressed the shutter release button” then we’ve gone down the the rabbit hole. Fortunately I have faith that even if US jurisdiction held in this case, a judge would apply an appropriate set of tests around the circumstances under which our simian friend came to be holding a high end digital SLR. For example s/he might ask how the primate and the camera happened to be in the same place. S/he might ask “How the camera came to be turned on” or “How the digital files from the camera came to be processed electronically and transformed into a reproducible format“. The Macaque isn’t available for cross examination, but I think we can reasonably assume that it doesn’t have access to the necessary equipment needed to effect such a transformation of the raw sensor information. Or the knowledge. In fact I think we can reasonably assume that the creature doesn’t have any sense of what a camera is, or how it works. Of course, the judge could ask the author of the images, how they came to be taken.
Or s/he could visit the authors page on the wonderful Black Crested Macaques of Indonesia, and read on… You’ll find Mr Slater’s photos there. They are amazing. They are also very clearly copyrighted. I want to reproduce a couple of excepts from his page here, so that the hubris and arrogance of Wikimedia in this case can be clearly demonstrated (I’ve underlined a few words for emphasis).
It was about midday on the second day and the monkeys, about 25 strong of all ages, halted for a rest and a grooming session. It had been a hard day as usual, slashing through tangled and very humid jungle, climbing over and squatting under fallen trees, all with a 20kg backpack on full of expensive camera gear…
I decided to set up the camera on a beanbag on a log, self-timer all set. I was afraid they would run off of course, but they didn’t. Rather, they grabbed my camera! Quick thinking had my guide rushing to save it – lesson learnt…
So I put my camera on a tripod with a very wide angle lens, settings configured such as predictive autofocus, motorwind, even a flashgun, to give me a chance of a facial close up if they were to approach again for a play. I duly moved away and bingo, they moved in, fingering the toy, pressing the buttons and fingering the lens. I was then to witness one of the funniest things ever as they grinned, grimaced and bared teeth at themselves in the reflection of the large glassy lens…
They played with the camera until of course some images were inevitably taken! I had one hand on the tripod when this was going on, but I was being prodded and poked by would be groomers and a few playful juveniles who nibbled at my arms…
Here’s the kicker:
But my original intention was never for fame, but purely to get these endangered creatures a bit more publicity and maybe a bit of much needed earnings as well
It took me 5 minutes to find Mr Slater’s page and this moving account of an incredible experience. It is beyond all reasonable doubt that Mr Slater created the entirety of the conditions that allowed his wonderful images to come into being. From the flights and accommodation, to the investment in the kit and the direct work to set up an environment that allowed a record of an interaction between two primate species, creativity was clearly demonstrated at multiple times.
And yet a bunch of anonymous cowards hiding behind the veneer of free information for the world, just decided to ignore the clear and abundant evidence that was just a click away; evidence that utterly discredits any basis for their arrogant dismissal of all his hard work as not meeting their threshold for “substantial contribution to the final image”.
Wikimedia – Take Down These Images! Respect the work that went into their creation, and respect the jurisdiction under which the work was created. And the next time you get a takedown notice, spend a little more time getting to the facts and a little less time wallowing in the superiority of your ideology before you dismiss the claims of the hard working creatives who try to make a living doing what they do.