But as the excellent 1709 Blog reveals, the photographs have got copyright experts excited. Why? Because it's not entirely clear who owns the copyright in the photographs. Does the monkey? The camera's owner? Does anyone?
The matter is complicated by the fact that it's not clear which country's copyright laws apply. It is possible that Indonesian copyright law applies, because the photos were created in Indonesia. However, UK law may apply, as the camera owner is British, as is the company now claiming ownership. Issues of which country's copyright law applies can get quite complicated in these sorts of situations.
But it's pretty clear that Ms Monkey misses out, because monkeys aren't "persons", so can't hold copyright.
The camera owner, David Slater, didn't create the image, nor did he pose the picture or set the camera up. All the work was done by the monkey. Surely, then, neither Slater nor anyone else claiming to derive title from him can legitimately say they own the copyright.
It appears that Slater transferred whatever rights he did have in the images (arguably none!) to Caters News Agency, perhaps in the hope that the legal principle known as nemo dat quod non habet ("no-one can give what they don't have") might somehow not apply in this case. Caters has since issued a takedown request to Techdirt over that site's use of the images, even though Caters appeared unable to explain on what basis it can claim to own any copyright. Caters' reasoning appears to be "well someone must own the copyright, and it's not you, so either way you can't use the images". That ignores the rather obvious problem that if you don't own the copyright in a work you don't get to complain how someone else uses the work.
There's also a whole pile of fair use arguments Techdirt could use under US copyright law if Caters really got serious and decided to litigate. I would love it if Caters did sue, if only to see how a court tried to handle the whole ownership issue.
It seems likely that in fact nobody owns the copyright and that the photos are in the public domain. Certainly in respect of UK law, that is the conclusion of the 1709 Blog author.
This fact emboldens me to publish the cutest of the pics.
A case of monkey see! Monkey do! Making chumps of those humanoids!
ReplyDeletediana
Don't things animals create belong to the animals owner? If your cat has kittens, they're your kittens, right?
ReplyDeleteRich, that may be the law regarding physical things, but copyright is a form of intangible property, and it exists only as a creature of statute (whereas a kitten exists as a creature of nature).
ReplyDeleteCopyright legislation in most countries requires a work to have an author before it can qualify for copyright protection. If there is no author there is no copyright. In most countries the author has to have "legal personality" - i.e. he/she/it has to be a legal person. The monkey in question may have plenty of personality, but none of the legal kind. So in most countries there will be no copyright for anyone to own.
Fascinating. In the digital age this becomes incredibly important. Twenty years ago I expect no one would have asked, the copyright claims of Caters would have been assumed to be correct. But when we're constantly told that what we're paying for is the intellectual content and not the medium, then what if there is no intellectual content? Or is the argument that monkey's can create intellectual content?
ReplyDeleteIf the photographer hadn't told anyone how he got the pictures, he would also seem to hold clear copyright, but the pictures wouldn't be worth as much! Similarly, what if he had intentionally given his camera to a group of monkeys as an artistic project, does he then own copyright of the result?