Monkey selfies and Technollamas

The monkey selfie is back thanks to a This American Life program. While it mostly deals with Slater vs PETA and gets that right its coverage of wikipedia’s role is more questionable. Techdirt has the details of that:

https://www.techdirt.com/articles/20171113/00185238602/monkey-selfie-photographer-says-hes-now-going-to-sue-wikipedia.shtml

From the copyright nerd POV the most interesting fallout is Technollama’s attempt to do an analysis of the case under UK law:

https://www.technollama.co.uk/the-monkey-selfie-strikes-back

While I broadly agree with their analysis (although I think they underestimate the differences between civil and common law copyright) a lot rests on the statement “If we believe Slater’s own telling of the story”. The reality is Slater’s telling of the story has been inconsistent. The initial version had the monkey picking up the camera and the whole thing being unplanned. There are reasons to be sceptical of the camera on a tripod claim. In particular one of the shots shows Slater resting his left hand on a tripod. I don’t exactly travel light in photography terms but I don’t carry more than one tripod unless I have a car with me (and even then the second tripod is a mini one). Other photos in the series were taken at different heights which again suggests a tripod wasn’t used. Technollama also argues for selected the lens aperture. Its possible. With wide angle lenses its hard to judge the depth of field well enough to tell. However the exposure (checked the lighting) jumps around a fair bit between pics depending on how much of the money is in shot (most obvious by looking how light the leaves are in the background). A fairly clear sign of the camera controlling the exposure (a human would be more likely to under expose a touch to try and avoid blowing the highlights before trying to bring the shadow detail out in post).

Post brings us to Slater’s actions after the picture was taken. My feeling is that this is Slater’s strongest case. None of the images are at the camera’s native resolution or even the same ratio as the camera’s native resolution suggesting some rotation and cropping. Its impossible to say if the colour balance has been changed. Does rotation and cropping qualify for copyright? Perhaps although the UK’s Intellectual Property Office ,“it seems unlikely that what is merely a retouched, digitised image of an older work can be considered as ‘original’”. Does cropping and rotating count as merely retouching the older monkey produced image? How would the courts rule? I don’t think there is any direct case-law yet.

In the meantime we are getting a bunch of emails to OTRS blaming wikipedia for Mr Slater’s issues and financial position. This is I’d argue somewhat unfair. The raising of the the issue of the image’s copyright status started with techdirt not us. More broadly the problem is due to the changing nature of the wildlife photography market. We now live in a world where you have a bunch of people who can afford high end camera gear and actively enjoy taking it to strange places and taking pictures of wildlife with it it. While these people have always existed in the past it wasn’t easy for them to offer their images for sale. Now it is. Being in the right place with a decent camera and the ability and willingness to sell you photos isn’t worth what it once was.

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3 Responses to Monkey selfies and Technollamas

  1. Andres says:

    Thanks for the post and the thoughtful reply. Here are a few comments to continue the conversation:

    – I’m not sure what you mean by the difference between common law and civil law in this context, so I’ll be willing to listen to your opinion on why I seem to underestimate the differences. Copyright law is harmonised through several directives, and therefore the difference is not as marked in this area. CJEU cases like Painer, Infopaq, Rafael Hoteles, Sabam, and Svensson (just to name a few) are incorporated and cited in UK courts. In fact, the English case of Temple Island quotes CJEU originality cases such as Infopaq, BSA and Painer.

    – Your interpretation and expert opinion of the Slater’s story are extremely useful and interesting. At the moment, we cannot do anything other than take his version of events, as these facts were not a matter of dispute in the PETA litigation. My guess is that if this ever goes to court again, the parties will call on experts to ascertain the facts. This case could very well rest on the details.

    – The UK’s Intellectual Property Office guidance that you cite does not really apply to this case, as Slater’s image is consider new in this context. In this paragraph, the IP Office is talking about the digitisation of public domain images, such as old paintings. This is evident when they say in the previous paragraph from the one you cite that: “However, there is a degree of uncertainty regarding whether copyright can exist in digitised copies of older images for which copyright has expired.”
    The IP Office here is citing a controversy that made it to court in the US involving images from the Bridgeman Art collection in the UK, the case is that of Bridgeman Art Library v. Corel Corp. I tend to agree that these pictures do not have originality according to current case law.
    We do have case law on the development and manipulation of pictures after the photo was taken, and the two cases I cite both make it clear that actions taken after the photograph can convey originality.

    We will probably not know the answer to the questions until there’s a case, but it is quite interesting to think about what may happen.

    • geniice says:

      The point of the IPO quote is that if the copyright is only produced by the digital equivalent of developing then there is a straight out of the camera JPG or RAW file that is public domain (unless we want to award the copyright to the programmers employed by the camera manufacturer) and statements about Bridgeman vs Corel like situations are the closest we have to statements on what level of transformation on those public domain images are needed go generate a copyright claim.

      • Andres says:

        The decsions both also refer to digital manipulation afterwards, not just old-fashioned development of a photograph.
        We do allocate copyright to computer-generated works (s 9(3) CDPA), the copyright goes to the person who made the arrangements necessary for the work to be created.

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