Geni's Wikipedia Blog

Monkey selfies and Technollamas

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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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