I said I was done with the copyright thing but, well, I couldn’t help myself. There were a few more things I wanted to address that didn’t fit neatly in part two of the copyright series. So here we are again. Today’s topic is authorship.
Before we go any further, let me ask you a question or two. Have you ever asked somebody to take your picture with your camera? If so, do you think that person (even if it is a complete stranger) has any ownership claim to that image? If you read my earlier posts on copyright then you might just have some doubts.
Back in the first copyright post, I made a couple of points that are relevant to day’s discussion. First, copyright is established at the time of creation (the execution of the idea into something tangible) and the person doing the creating typically is the copyright holder. With that background, I want to write about two examples that you may have noticed in the news this year – first, the Ellen DeGeneres led group selfie at the Academy Awards, and second, the monkey selfie. I think you’ll find this interesting if maybe a bit surprising.
I’ll start with the Ellen group selfie.
— Ellen DeGeneres (@TheEllenShow) March 3, 2014
The above photo (and tweet) was made at the last Academy Awards ceremony. Ellen DeGeneres brought a bunch of really famous people together, gave Bradley Cooper her phone, and then he pressed the shutter. There are two potential points of view here. First, the group portrait was clearly Ellen’s idea – she got the crowd together for this portrait, gave her camera to Bradley Cooper because he had the best vantage point in the group, and then told him to take the photo. Her role as the creative force behind the image gives her a credible claim to authorship. On the other hand, Bradley Cooper took the photo and unless there was a clearly worded written contract in place prior to the creation of the photo, he might also make a legitimate claim of authorship.
So who do you think is the rightful owner of the copyright for the photo that ended up being one of the most retweeted photos in history? The easy answer is that Cooper owns the image because he composed and took the photo but DeGeneres also likely has a valid claim to at least co-ownership because the image was made under her direction.
This scenario is really very common in today’s age however these questions are largely academic because unless someone asserts a claim to ownership, we will never really know which way a court might decide.
The second example I want to share today is the monkey selfie.
Have you heard about this one yet?
In 2011, British wildlife photographer David Slater went to Indonesia to photograph the endangered species Celebes Crested Macaques with the hope that if he raised awareness of these animals, that he’d be able to build support to protect the monkeys. At one point during his trip, this monkey picked up one of the cameras and made a self portrait with no direct involvement by Slater. Which is to say that Slater put in a LOT of time and effort to create the conditions that led to this photo having been taken BUT he did not press the shutter on the camera when this exposure was made. It was an incredible experience and it resulted in a dynamic photograph. Slater, rightly so, wrote all about his experience and how this image came to be made because, let’s face it, having a member of the endangered species create such an expressive self portrait was exactly the kind of image that he wanted to create for his trip to raise awareness.
Soon after, a Wikipedia editor made an entry about the image and uploaded a copy of the photograph to the Wikimedia Commons site which is a repository for ‘freely usable media files’. This was done without Slater’s permission and when he asked them to remove the image, they refused saying:
“copyright cannot vest in non-human authors” and “when a work’s copyright cannot vest in a human, it falls into the public domain.” (1)
Slater then filed a copyright infringement suit. So which side do you think won?
As it happens, Slater lost because the court agreed with the Wikipedia argument. That is, because Slater represented the image as a selfie (i.e. the monkey composed and created the image without human involvement), he essentially gave up authorship of the image. I can’t say for sure, but I highly suspect that had he claimed all along that he set up the image but said that the monkey’s role in the image was just to hold the camera, then the case would have turned out differently.
So do you think that the ruling was fair? Personally, I think it sounds like a case where the letter of the law trumped common sense, but then again, there is no law mandating common sense. Okay, now I promise to leave the subject alone for a while.