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Can a Monkey Get a Copyright & Issue a Takedown? 335

Posted by Soulskill
from the would-be-a-step-up-for-some dept.
An anonymous reader writes "Last week, the Daily Mail published a story about some monkeys in Indonesia who happened upon a camera and took some photos of themselves. The photos are quite cute. However, Techdirt noticed that the photos had copyright notices on them, and started a discussion over who actually held the copyright in question, noting that, if anyone did, the monkeys had the best claim, and certainly not the photographer. Yet, the news agency who claimed copyright issued a takedown to Techdirt! When presented with the point that it's unlikely the news agency could hold a legitimate copyright, the agency told Techdirt it didn't matter. Techdirt claims that using the photos for such a discussion is a clear case of fair use, an argument which has so far been ignored."
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Can a Monkey Get a Copyright & Issue a Takedown?

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  • by perpenso (1613749) on Tuesday July 12, 2011 @09:24PM (#36744022)

    Can a Monkey Get a Copyright & Issue a Takedown?

    Maybe a million monkeys could do it, as they do with Shakespeare.

    • by kale77in (703316) on Tuesday July 12, 2011 @10:00PM (#36744242) Homepage

      1) Does copyright apply to random generation? The Shakespeare issue captures the essential point... Would the monkeys hold copyright on their text, having produced it by chance?

      2) Is intentionality is required for moral rights of art creation? If I'm camping and a rock falls on my camera and somehow causes a photo to be taken, does the rock have the copyright? What if a monkey falls on the camera, with the same effect? What if the monkey tries to eat the camera, with the same effect? What consciousness of the act of creation is required? In this case, the monkeys framed their reflections in the lens, which was a creative act if using a mirror is a creative act. There can't have been any consciousness of others publishing these images; are the 'portraits' thus portraits to us but not to them?

      3) Copyright is a human social construct that prevents the exploitation of creativity to the detriment of authors. Does this have any meaning in whatever system of exchange impresses monkeys?

      • by LordLimecat (1103839) on Tuesday July 12, 2011 @10:08PM (#36744304)

        3) Copyright is a human social construct that prevents the exploitation of creativity to the detriment of authors. Does this have any meaning in whatever system of exchange impresses monkeys?

        This is the most relevant part. Copyright's intention is to encourage works by providing the author with certain privileges. When there is no human author and no intentionality behind it, there is no reason for copyright.

        • by jimshatt (1002452) on Wednesday July 13, 2011 @02:54AM (#36745740)
          The photographer, David Slate, was there with his camera to photograph the monkeys. That's your intentionality right there. It doesn't matter if he shot the photos themselves, used a tripod and a random interval for taking pictures, or used monkeys. I know I'm stretching the glorified tripod analogy, but still...

          When I ask a passer-by to take a picture of me (and my family), who owns the copyright? I really don't know.
          • by sFurbo (1361249)
            The passer-by (damn, I read that yesterday in an article about this story, but now I can't find it).

            With respect to your point, I would agree if he had given the camera to the monkeys, but AFAICT, the monkeys took the pictures with him unaware, so it wasn't his intention to make those pictures.
          • by ewanm89 (1052822)

            Technically the passer-by owns the copyright, however, one could argue there is a implicit contract to pass copyright to whoever owns the camera in such cases even though it's that explicitly stated and/or put in writing. In this case, the photographer didn't ask the monkeys to take the picture, the monkeys just picked up the camera and did.

            If I come along, see a nice picture a photographer missed and asked to borrow the camera for the shot (I accidentally left mine at home or something) presuming it is agr

        • by Pharmboy (216950) on Wednesday July 13, 2011 @03:17AM (#36745858) Journal

          This is the most relevant part. Copyright's intention is to encourage works by providing the author with certain privileges.

          You forgot the most important part: Copyright exists to give the creator exclusiverights to profit from the creation in exchange for the public gaining ownership after a fixed period of time. We protect you now, you give it to us later.

          The idea that you "own" what you create is an artificial construct, a mutually beneficial social contract, and a point that most corporations don't seem to care about anymore. Disney in particular, wants to buy or create "creative works" and own them forever, yet have society pay to secure that right. That is not a sustainable or justifiable system, and certainly is not what the original intent was.

          • by ewanm89 (1052822)
            Actually, that was the original intent of the Church lobbyists when they first asked for it to stop the bible being reproduced en masse with the new printing presses. Look at how well that worked out.
          • by melikamp (631205)

            Copyright exists to give the creator exclusive rights to profit from the creation

            This is wrong twice. The actual purpose of copyright is to give publishers, not creators, exclusive rights. This goes back to the Statute Of Anne which assigned copyrights directly to printers and hosed writers both retroactively and in the future. US law fixed the language, but neither the purpose nor the effect. It is still virtually impossible to collect monopoly profits unless you are a publisher. As a lone artist, you invariably find that in order to make any money at all, you have to become very famou

        • by alexo (9335)

          Copyright is a human social construct that prevents the exploitation of creativity to the detriment of authors. Does this have any meaning in whatever system of exchange impresses monkeys?

          This is the most relevant part. Copyright's intention is to encourage works by providing the author with certain privileges. When there is no human author and no intentionality behind it, there is no reason for copyright.

          And here I was, thinking that modern day copyright is a system to lock down and monetize culture to the

      • Shakespeare is public domain so the monkeys wouldn't be able to copyright it. The monkeys would have to come up with their own works of literary genius, which isn't plausible since Monkees only reproduce works written by others. However, that may not stop them for trying to take the credit.

      • by Ol Olsoc (1175323) on Tuesday July 12, 2011 @10:48PM (#36744594)
        Copyright is as copyright does. Chance is not in the equation. A human photographer or painter can and often does hold copyright on randomly shot photos. And for a good reason. At what point does randomness stop? If say you set up a camera with method of taking photos of lightning, it will do it. And you hold copyright and can sell that photo as yours. Lightning is very random.

        I find this issue interesting in the extreme, esp since copyright is now becoming badly abused. Apparently perpetual copyrights, and shrinking concept of fair use - the legals are involved to the hilt, so now they are going to get involved in this.

        First off, those photos are pretty good. Better than many human taken photos. So there is tangible worth. Next we look at what a copyright owner is. Must the holder be human? Where is that defined? Now we move on to the comparative aspects of non-human copyright. Certain animals have been shown to be self aware, and there is no doubt that many animals could learn that there is something happening when they press the shutter on a camera. They can create. Now compare that to say a 3 year old human taking photos, I allowed my son to take photos with my professional camera at that age. An African Gray Parrot for instance is functioning at an intellectual level of around a 4 year old. So were my son's photos not copyrightable? How about an autistic or schizophrenic person?

      • by snowgirl (978879)

        3) Copyright is a human social construct that prevents the exploitation of creativity to the detriment of authors. Does this have any meaning in whatever system of exchange impresses monkeys?

        Seems to me that if the photographer properly and adequately reimbursed the monkeys then the paper would have purchased said portraits by contract from the monkeys.

        • Then again there is the matter of what context and who's equipment was used. Copyright is not always clear cut and usually depends on who has the better lawyers in those murky parts.

        • by gnasher719 (869701) on Wednesday July 13, 2011 @02:32AM (#36745650)

          Seems to me that if the photographer properly and adequately reimbursed the monkeys then the paper would have purchased said portraits by contract from the monkeys.

          You can't form a contract with a monkey. Therefore you cannot get the copyrights for a work created by a monkey. And lastly, a DMCA takedown notice by a person who doesn't have the copyright is a criminal matter.

      • by AK Marc (707885) on Tuesday July 12, 2011 @11:28PM (#36744842)

        Does copyright apply to random generation?

        Copyright applies only to creative generation. Random would not count. Logical (i.e. alphabetical listing of people and numbers in phone books) is explicitly not covered by copyright. It does not apply to discoveries (pretty rocks, math, photos taken by monkeys). Many photos are uncopyrightable. A photo of a painting taken to replicate the painting as closely as possible, even if it requires great technical skill for lighting and such, is not a creative work, but an uncopyrightable derivative of the painting. However, in almost all other cases of taking a picture of art, the photo is copyrightable. The assumption is that there was some creativity in picking the location or lighting or such when taking the photo, even if it is just a picture of a random building taken from across the street without actual care or creativity expended in taking the picture.

        So, unless there is some creativity required for the creation of the item in question, one may not copyright it. If they argue that the monkeys were creative, then the monkeys would hold the copyright, as the human discovering the monkey picture did not create anything and thus can't hold the copyright to it.

      • by phantomfive (622387) on Tuesday July 12, 2011 @11:33PM (#36744868) Journal
        Claiming copyright on the output of an algorithm (ie, randomly generated numbers) has been tried before [slashdot.org]. The consensus at the time (not that I looked deeply) seemed to be that the law is vague on the issue, and it might manage to stand up in court.
    • by jbeaupre (752124) on Tuesday July 12, 2011 @10:41PM (#36744544)

      Shakespeare's works are public domain, which is why monkeys can do it. It might take a million of them to figure out how to do it, but every one of them knows they'll be turned into monkey stew if they try to write anything by J K Rowling. An encyclopedia of her works, they are still debating.

  • by rhook (943951) on Tuesday July 12, 2011 @09:25PM (#36744028)

    Sue them, on behalf of the monkeys.

  • by BWJones (18351) * on Tuesday July 12, 2011 @09:26PM (#36744038) Homepage Journal

    Yeah, but what about derivative works like this: http://www.flickr.com/photos/bwjones/5914210045/ [flickr.com] or this: http://www.flickr.com/photos/bwjones/5914755036/ [flickr.com]

  • Once again, it just sickens me that this sort of thing takes place.

    • by zill (1690130)
      And on an entirely more serious note:

      In most states the act of bestiality is illegal, but pornographic photographs of animals are not.
      In every state, sex with children, as well as pornographic photographs of children are illegal.
      Which brings us to the question: is pornographic photographs of monkey children illegal?

      Please help me out here, Slashdot armchair lawyers. I desperately need the answer for educational purposes.
      • more to consider:

        paying money to have sex is illegal in most places.

        but not if you film it and sell tickets at a movie theater.

        think about it.

        • by jesseck (942036)
          But in the porno business, it would be like your friend hiring a prostitute to fuck you... the producer pays the girl to have sex with you. So, here's another one: if I cruise main street with a buddy, and he negotiates for a lady to have sex with me, who will go to jail?
  • by juventasone (517959) on Tuesday July 12, 2011 @09:31PM (#36744064)
    And they take better pictures than I do...
    • glad i wasn't the only one thinking "how the hell does a monkey take such a good self portrait when the best i can manage is a picture composed of about 2% my head, 18% the sky and 80% my arm...
  • We post the photos on Wikipedia now, and wait to see who challenges copyright!
  • I know that if you are the sole possessor of, e.g., a discontinued book, you become the copyright holder of that work. Without necessarily knowing the specific laws, it seems it should be similar here. The alleged goal of copyright is to incentivize the creation and/or distribution of works. The fact that this typically involves rewarding the 'artist' is tangential. The pictures do not become accessible to the public unless somebody gives the monkeys an expensive camera and uploads them. That person sh

    • Re:Seems fair (Score:5, Interesting)

      by bipbop (1144919) on Tuesday July 12, 2011 @09:45PM (#36744154)

      I know that if you are the sole possessor of, e.g., a discontinued book, you become the copyright holder of that work.

      [citation needed]

    • by Lehk228 (705449)
      that is an interesting belief you hold, it is not, however based on any semblance of reality
      • by Ksevio (865461)
        Well if you have the only copy then you can run away and hide it - thus preventing others from copying it. That's what copyright is...right?
    • by nedlohs (1335013)

      What other things do you know that bear no resemblance too reality?

    • by c0lo (1497653)

      The alleged goal of copyright is to incentivize the creation and/or distribution of works.

      I fail to see how the existence of copyright law incentivizes monkeys to take pictures.

      As for the distribution of the work... don't go there... you should already have noted that the access to Internet does lower the distribution barrier that much I would not think that copyright laws now need to be used to incentivize the distribution (I rather think the contrary is happening in this case and many others).

      • by nedlohs (1335013)

        Every instance of the applicatoin of copyright law does not need to incentivize the creation/distribution of works. The overall effects of the applications of them should in order for them to meet their goal.

        Just because one doctor screwed up and killed a patient does not mean that having modern medical doctors does not meet the goal of keeping people alive longer than they would without.

    • I know that if you are the sole possessor of, e.g., a discontinued book, you become the copyright holder of that work.

      Your ideas are intriguing to me and I wish to subscribe to your newsletter

  • "Some monkeys in Indonesia ... took some photos of themselves. [People on Techdirt noted] that the monkeys had the best claim, and certainly not the photographer."

    But the monkeys are the photographers! They're the ones who "framed" the picture and snapped the photo, with the former being essential to asserting copyright on pictures of natural objects and environments. Unless the photographer cropped the pictures in question in order to improve upon them, I'd say the credit goes to the monkeys and nobody els

    • by MacTO (1161105)

      I'm guessing that any claims to copyright will be made over processing done to the photo prior to publication and, perhaps any setup done to the camera before they monkeys started monkeying around. After all, it's hard to get photos that good by pure chance.

    • Except monkeys aren't legal persons, and therefore can't hold copyright, enter into a contract. I would say that the copyright belongs then to the closest human in the causal chain, i.e. the person who gave them the camera.

      It's similar to claiming that your cat agreed to an EULA when you set everything up and wait for it to tread on the mouse. Hooey. The animal is merely a servant of the human master.

      Tying it nicely together: http://www.bbc.co.uk/news/uk-13286470 [bbc.co.uk]

      • using that logic though, if a dog bites a person, we should put the owner down, because "The animal is merely a servant of the human master."
    • by artor3 (1344997)

      You might as well say that the camera itself holds the copyright. After all, it probably had an autofocus or something.

      I know Slashdot hates copyrights, but the argument that the monkey holds it is just puerile.

      • by AdamWill (604569)

        No-one is seriously arguing that the monkeys hold the copyright. We _are_ suggesting that there's no reasonable grounds on which anyone _else_ could claim to own the copyright. Shockingly, it's possible for data to exist without anyone holding a copyright on it, though some interest groups dearly wish things were otherwise.

      • by sjames (1099)

        How about when Koko the gorilla took pictures? She was clearly self aware and knew very well what she was doing. A legal system that supports the idea of police suing money (the actual money, not the person who possesses it) for being used in a drug transaction surely has given up all moral right to claim only humans have legal standing.

    • by dudpixel (1429789)

      the whole issue is just silly.

      So if I steal someone's camera and take photos on it, can I legally require that they return the photos to me once they reclaim their camera? can I stop them publishing the photos even though I took them on their camera?

      The monkeys dont own the camera. Its exactly the same issue.

      Take the monkeys out of the picture, and suddenly its not a confusing problem any more.

      • by profplump (309017)

        You cannot compel them to return the photos. But you can probably require that they do not publish the photos.

      • So if I steal someone's camera and take photos on it, can I legally require that they return the photos to me once they reclaim their camera?

        No.

        can I stop them publishing the photos even though I took them on their camera?

        Possibly. It depends on whether or not it's considered fair use for somebody to publish pictures a thief took with their camera. One thing's for sure, though: the owner of the camera would not hold the copyrights to the pictures you took.

      • by BKX (5066)

        To answer your two questions, no, yes.

        That's right, if I steal your camera and take pictures with it you don't have any obligation to return the pictures to me upon return of the camera, but I, as the photographer (even though the camera was yours and stolen) own the copyright, and, thus, can stop you from publishing them.

        More relevant to the monkeys, in order for the owner of the camera to have a copyright on the monkey's photos, he would have had to make a conscious creative act causing him to reasonably

      • by sjames (1099)

        So if I steal someone's camera and take photos on it, can I legally require that they return the photos to me once they reclaim their camera? can I stop them publishing the photos even though I took them on their camera?

        Yes, the copyright on those particular photos is yours unless/until the court rules that you forfeit those rights to the camera's owner as partial compensation.

        You cannot demand that they hand them over, only that they not make copies.

  • And suddenly this story from 2002 finally makes sense:

    US activists demand lawyers for chimps [bbc.co.uk]

  • by ChromeAeonium (1026952) on Tuesday July 12, 2011 @09:37PM (#36744102)

    Well, that explains why, on YouTube, videos with good music always tend to get taken down. I think, 'Now what kind of idiot would force down free promotion? I never even would have heard of this music had it not been for YouTube.' I always figured a monkey, and an exceptionally stupid one at that, was behind those takedown notices.

  • by retaj (1020999) on Tuesday July 12, 2011 @09:41PM (#36744122)
    Would an infinite number of monkeys with an infinite number of cameras still have more fun flinging poo?
  • ...but don't you have to be a person (or company...ugh) to qualify for holding a copyright? Or am I missing something obvious?

  • I see it now. One monkey in Indonesia issues a takedown. Eventually, 100 monkeys demand compensation. Soon monkeys everywhere know about the DCMA.

    You Maniacs! You blew it up! Ah, damn you! God damn you all to hell!

  • Perhaps they're after the Streisand Effect.

  • Seem like the patent BS is coming to copyright is a there Eula on the camera that makes the rights / copyright owned by who made the crammer?

  • However, Techdirt noticed that the photos had copyright notices on them, and started a discussion over who actually held the copyright in question, noting that, if anyone did, the monkeys had the best claim, and certainly not the photographer.

    Why the monkeys and not the camera sensor? Or the chip in the camera that processed the image?

    Or maybe ownership is a human concept -- one we invented full cloth -- and one that monkeys and inanimate objects do not qualify for.

    • Or maybe ownership is a human concept -- one we invented full cloth -- and one that monkeys and inanimate objects do not qualify for.

      Yeah right. Try taking a banana away from a monkey. Or a bone away from a dog. Animals have a sense of ownership, it just usually doesn't last long because they tend to consume the item.

  • Same issue as painting elephants [wikipedia.org]. This has been discussed in copyright literature (PDF warning) [208.109.169.73]. Internally, the copyright office excluded works produced by animals, as well as works produced entirely by "mechanical processes or random selection without any contribution by a human author."

    The U.S. Supreme Court's general rule that a copyrightable work's âoeauthor is the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection." ... Broad and traditional notions of copyright authorship assumed the answer to that question was limited to human creators. But no definition of "author" appears in the copyright statute. Neither does the Constitution's reference to authors mandate that they be human.

    From a theoretical perspective, the question often comes down to creativity - can animals be creative? Animal research tends to suggest that animals CAN be creative, to the same extent as humans. The issues are similar with computer generated "expression" - can a computer be creative? Should randomness be considered creativity?

    However you come out on those questions, courts have decided, based on a policy choice favoring humans, to exclude animal authorship. Which makes some sense, since an elephant doesn't have capacity to enforce its rights (you could have a guardian do it, but we don't allow animal guardians to sue vets for malpractice, so it is hard to see why this would be different).

    With elephant paintings, the copyright is typically in the name of the zoo, or whoever enabled the elephant to make the painting (e.g. selected colors, brush type, canvas type for the animal). In the case of a monkey who took a picture, probably the zoo or the camera owner.

    • by nzac (1822298)

      These are wild monkey who picked up camera lying around, according to the article/summary which you did not read. I guess you would have to give it to the person who left the camera there but that’s pretty weak.

      By my thinking since there is no valid author copy-write law does not apply.

  • The lawyers WERE the monkeys. Can't anybody else see that? They're beating their chests over some pictures, demanding compensation (in bananas), and monkeying around with the judge over how far their "property rights" extend (being territorial).
  • When presented with the point that it's unlikely the news agency could hold a legitimate copyright, the agency told Techdirt it didn't matter.

    Strange that no-one commented on this sentence. I may misread it, but it sounds like the agency doesn't care whether it actually owns the copyright on the photos, it just wants Techdirt to take them down.

    And I always thought that to legitimately send out such copyright notices, ownership of the copyright was a requirement. And that if you don't own the copyright, you're committing an offense. Now who owns copyright on those photos I don't know, and that's not the point here. You can't sue someone for infri

    • by glwtta (532858)
      it sounds like the agency doesn't care whether it actually owns the copyright on the photos, it just wants Techdirt to take them down

      I think it's more likely that they don't care about Techdirt's disingenuous claim that monkeys own the copyright.
  • by mevets (322601) on Tuesday July 12, 2011 @10:46PM (#36744586)

    If monkeys can be CEOs, why can't they hold copyrights?
    I'm certain the first one was infringing on that MS exec's copyright though...

  • by thetsguy (1211146) on Tuesday July 12, 2011 @11:54PM (#36744964)
    Now this qualifies to be a monkey business
  • by fygment (444210) on Wednesday July 13, 2011 @06:53AM (#36746706)

    Interesting discussion on copyright. But what if:

    the photos and story are a fabrication. The photographer set it up and concocted the entire scenario to sell the story. So really, the copyright claim is valid since the photographer did do the work. The Daily Mail is reacting since it is trying to cover up the lie it published. If too much scrutiny is drawn to the pictures, then the hoax will become apparent.

    Next story: monkeys hack in to cell phone accounts and leave cute messages.

  • by RevWaldo (1186281) on Wednesday July 13, 2011 @07:19AM (#36746852)

    And three monkeys sat in a coconut tree
    Discussing things as they are said to be
    Said one to other now listen, you two
    “There’s a certain rumour that just can’t be true
    That man descended from our noble race
    Why, the very idea is a big disgrace, yea”
    No monkey ever deserted his wife
    Starved her baby and ruined her life

    Yea, the monkey speaks his mind

    And you’ve never known a mother monk
    To leave her babies with others to bunk
    And passed them on from one to another
    ‘Til they scarcely knew which was their mother
    Yea, the monkey speak his mind

    And another thing you will never see
    A monkey build a fence around a coconut tree
    And let all the coconuts go to waste
    Forbidding all other monkeys to come and taste
    Why, if I put a fence around this tree
    Starvation would force you to steal from me

    Yea, the monkey speaks his mind

    Here’s another thing a monkey won’t do
    Go out on a night and get all in a stew
    Or use a gun or a club or a knife
    And take another monkey’s life
    Yes, man descended, the worthless bum
    But, brothers, from us he did not come

    Yea, the monkey speaks his mind


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