Not a pretty picture: Thoughts on the "monkey selfie" debacle: Is Wikimedia taking the right approach?
Every day, Wikimedians on projects such as the English Wikipedia and Wikimedia Commons debate and decide whether specific pieces of content such as images should be kept and used, or should be deleted. Most of these discussions are routine and not of interest to more than a handful of people, but there are exceptions. In this column, which I have adapted and updated from my comments in a recent deletion discussion on Commons, I discuss such an exceptional case in which our collective decision whether or not to keep and widely use a set of images has been broadly publicized, and I challenge the decision we have thus far reached.
In 2011, the wildlife photographer David Slater traveled to the Indonesian habitat of a group of macaque monkeys. He set up a camera to photograph the monkeys, but then stepped away from the camera for awhile, during which time one of the monkeys pressed the photo button several times. (I had been under the impression that a monkey's pressing the button was inadvertent on Slater's part, but I see that our mainspace article indicates Slater allowed this deliberately.) Some of the resulting photographs of the monkey looking directly into the camera, christened by some as the "monkey selfies," have become iconic. Extensive discussion has followed both on- and off-wiki of whether Slater has legal or, at least, moral rights to the photographs, or whether he is without rights because he is not the one who pressed the button. In the Wikipedia context, the question becomes whether the "monkey selfies" can be freely used on-wiki, and equally important, whether they should be.
When the question "who owns the monkey selfies?" first arose, I perceived it as just an interesting parlor-game, or perhaps as something suited for my "final exam for wikilawyers", but I did not pay too much attention, because I doubted that the issue's practical importance were worth the energy being spent debating it. My view shifted more recently as I learned more about the person behind the photograph, who is deeply unhappy with Wikimedia, and who has asserted in the press, though not (yet?) in court, a very real claim of rights.
To date, Wikimedia and Wikipedia have taken the position that the photographs are in the public domain and thus that they may, and will, be freely used on our projects for any purpose. I challenge that outcome and suggest that we change course, not merely because of legal uncertainty but because respecting the human photographer's rights in these photographs is the right thing to do. If we respect the intellectual property rights of photographers in general, as we must, then I believe our approach to this particular set of photographs cannot be justified.
It is undisputed, because Slater disclosed it (if he had not no one would know), that the monkey pressed the button on the camera. It appears to be equally undisputed that the monkey did not make any creative or substantive decisions relating to the photographs. In particular, it certainly was not a crested macaque monkey who (1) acquired a camera, (2) studied photography and become a photographer, (3) decided to use the camera to take photographs of wildlife, (4) decided to bring the camera to a particular location in Indonesia on a particular date, (5) selected a particular image or creature to be photographed, (6) set up, configured, or adjusted any of the settings on the camera, (7) had any knowledge that if he pressed the button, the result would be a photograph, much less (8) had any knowledge that if he pressed the button, the result would be a photograph of himself, or even (9) knew what a camera is, what a button is, or what a photograph is. It was Slater who did, or had, or knew, each of these things.
I thus have little difficulty in recognizing Slater as the intellectual parent of these photographs, at least to the extent of not wishing to see them used on-wiki without his consent, and indeed over his express and deeply felt objection. Historically, Wikimedia projects have taken a fairly strict view of what constitutes potentially copyrighted material, which either should not be used at all or may be used only in limited circumstances and with a clearly stated fair-use rationale. Over time, this strictness has resulted in some unnecessary deletions, based on purely notional or theoretical copyright claims that were never realistically going to be pressed by any rightsholder in the real world. In that context of bending over backwards to honor borderline copyright claims, we should think long and hard before we insist on continuing to use a particular photograph over the express objection of an individual who, at the least, has a colorable and reasonable argument to be both the practical and the legal author and owner of the material.
Although I am a lawyer, I do not find it helpful to view this primarily as a legal question. The legal background here is actually a bit absurd. Last year, an animal-rights group brought a lawsuit in the United States District Court for the Northern District of California (San Francisco) seeking a declaration that the photographs were copyrightable and that the copyright belongs to the monkey (See previous Signpost coverage). That lawsuit predictably went nowhere. Indeed, a defendant's brief in the case put it beautifully: The words "a monkey, an animal-rights organization and a primatologist walk into federal court to sue for infringement of the monkey’s claimed copyright" belong in a comedy sketch, not a copyright action; and "monkey see, monkey sue" is not good law.
That outcome did not, however, resolve the more serious question of whether the images, under US law or any other law, belong to Slater or are in the public domain. The US Copyright Office has not ruled on the copyrightability of these specific images, but has issued guidance, perhaps with this dispute in mind, describing "a photograph taken by a monkey" as uncopyrightable. I don't think, however, that anyone at the Copyright Office delved into the extent of human contribution and creativity in the creation of these particular images, nor am I sure that the Copyright Office's interpretation here is right—and let's not even get started on the choice-of-law issues that might be involved. Enough with the legalities: at a minimum, I believe Slater can make a reasonable and defensible claim that the copyright is his, and more importantly, that it should be his.
"Free content" projects such as Wikimedia should not be in the business of perpetuating bizarre and unnecessary disputes over rights ownership, challenging the rights of persons who either are the owners, or in good faith make a defensible claim that they are the owners and are certainly the intellectual creators, of a set of images. Now, to be sure, this principle can be taken only so far: there are times, such as in certain freedom of panorama disputes, or where attempts to recapture large categories of public domain images ("reenclose the common"), or other types of overbroad intellectual property claims would significantly decrease freedom of expression, that taking a stand will be justified. But such cases have been rare, and this is not one of them. The factual scenario underlying this image is a bizarre one, unlikely to recur, certainly unlikely to recur with frequency. Any loss of intellectual freedom that would be associated with our choosing to delete these images or at least to minimize their use would be very slight.
It certainly would reflect questionable priorities for Wikimedia or Wikimedians to expend either scarce legal resources or our goodwill on litigating such an issue if, as is reportedly possible, Slater were to assert a claim. Sometimes, of course, we must spend money and resources and goodwill to defend an important principle, and we have collective resources devoted to precisely that endeavor, to be put to use if and when we need them. But defending the dubious principle that "if a photographer sets up a shot but somehow an animal presses the button, we will ignore the intellectual property claims of the photographer" is not such a case. And, significantly, it is not the case that we must use every image that we legally may, or arguably may; surely we are free to consider what is fair and ethical, and not merely what is lawful, in making these decisions.
I have read through much of what has been written about this subject over the past couple of years and I am disappointed by some editors' insensitivity to what is, at least, a substantial rights claim asserted in good faith. I am also troubled by some comments made over time that, while I would not say they were made for the purpose of bullying Slater, at least have the foreseeable effect of making a show of his powerlessness to control the reuse of images that would not exist but for his efforts, expertise, and expense.
One of the legal memoranda that Slater's lawyer submitted in the federal case is worth quoting as it summarizes his position concisely and well. I recognize that I am quoting an advocate's words rather than from a neutral source, but I find these points persuasive:
| “ | Snapping the shutter is something any human or monkey can do; setting up what became a world-famous, award-winning photograph is what professional nature photographer David Slater did. As a non-human animal, [the monkey] is inherently incapable of setting up the photograph at-issue in this case. Slater set up what became the Monkey Selfie in the course of several grueling days in an Indonesian jungle. Developing a keen understanding of their subjects is a critical skill for any professional photographer, and it was vital here for Slater as he slowly built a trustful, friendly relationship with a group of crested macaque monkeys. Only a talented human photographer could have made the artistic choices involving camera lens width, positions and settings (e.g. predictive autofocus, motorwind, and flashgun.... [Slater] made the critical artistic decisions that resulted in a photographic work adored by millions worldwide. |
” |
I understand that there are those who think that this issue is a tempest in a teapot; as I said, I was until recently in that position myself. And frankly, I can imagine that someone else who found himself or herself in Slater's position might have chosen to go along and not make a fuss and to be "a good sport" about the whole thing. He might have figured that the unique circumstances were not going to repeat themselves, and that the attendant publicity might be positive, for his reputation and business and for the causes of nature photography and protection of the wildlife that he adores.
But it is not for me, as a stranger to Slater and to his life's work, to say that he made the wrong choice by reacting instead as he has. I realize that this may seem a harsh judgment, but in my view, we dishonor the cause of free knowledge when, as the largest free-content set of websites in the world, we treat him as we have.
Discuss this story
Very well-said; I do recall that Slater said that he was previously making some money off the photograph before the debacle. There's really no point forcing a sole photographer to fight a court battle over a scenario that will likely have no impact on copyright use on Wikipedia at all. (Not to mention that the photograph itself isn't exactly essential) It just seems like the Wikimedia Foundation pushing its weight around and ignoring the human in the situation. Opencooper (talk) 19:58, 24 January 2016 (UTC)[reply]
(ec) There are various things that can be said:
All the best: Rich Farmbrough, 20:02, 24 January 2016 (UTC).[reply]
I blogged about this issue, from my standpoint as both a photographer and animal rights activist, after reading about it in the Signpost last year. I still believe that neither Slater nor PETA (the group filing the lawsuit, which I basically detest and have no affiliation with) were acting entirely in good faith. But the reasoning in this article for ultimately removing the photos from Commons is reasonable and persuasive. Funcrunch (talk) 21:41, 24 January 2016 (UTC)[reply]
This is spot-on correct and, if anything, is on the conservative side. This is no different than a live sporting event. Slater rented the venue and photographed wildlife with the explicit intent of creating photographs for his business. If this was at a football match or baseball game and the monkey pressed the record button, the rights to the recording are not magically transformed into "public domain." The match in question is unscripted just like the photo in dispute but there is no dispute that the account of the match or game belongs to the team or league regardless of who presses the record button. "My monkey took the photo so that means I have the right to broadly copy and release it" is not going to fly and I expect the Premier League, MLB and NFL will all agree that venue and intent are much more important than outcome. Their amicus briefs will strongly favor the rights of Mr. Slater to control the intellectual property that resulted from his endeavor and not the "public domain" argument put forth by Commons. A "monkey defense" will be quashed as the monkey is not the one responsible for unlicensed distribution. --DHeyward (talk) 04:15, 25 January 2016 (UTC)[reply]
This is an excellent article. Combined with the automated harvesting of Flickr images whose creators (possibly inadvertently) posted under CC licenses but never authorised Wikimedia to republish - including many of an obviously personal nature and/or with no encyclopaedic value, there are real issues with the way Wikimedia treats photographers' moral rights. Nick-D (talk) 23:02, 25 January 2016 (UTC)[reply]
Some questions
Do (1), (2), (3), (4), (7), (8), and (9) actually matter as far as copyright ownership? A lot of sources say no. Nor does it matter that Mr. Slater "slowly built a trustful, friendly relationship" with the monkeys.
(5) probably matters, since that does come under the "creative input" that copyright requires. But isn't the point of the whole "monkey selfie" situation that Mr. Slater didn't actually select a particular creature to be photographed, the monkey did? He went to where monkeys were with a camera, yes, but the early interviews (before this blew up into a huge copyright battle) report Mr. Slater as saying that "[h]e left the equipment for a few moments and when he returned one of the creatures was, well, monkeying around with it."[3][4] His story seems to have changed since those early interviews, of course, claiming that he planned for the monkey to snap the picture and that he arranged everything to the point that the monkey just activated a remote trigger, versus the early interviews where it was played as accidental that the monkey grabbed and activated an unattended camera and fortuitous that a few of the hundreds of photos turned out well.
And (6) might matter, but from some cursory searching that seems to be a question that has been debated back and forth in a lot of legal battles as to what extent adjusting settings on the camera (#6, which Mr. Slater presumably did) versus arranging the subject, framing the image, and choosing the moment to snap the picture (#5, which Mr. Slater didn't do) matter. This could be compared to art by elephants: someone chose the paints and brushes and elephant and put them all together (#6), yes, but the elephant actually created it (#5).
Another thing to consider would be whether whatever cropping or digital manipulation Mr. Slater might have done to the raw photographs to produce the final images released are sufficient creative input for copyright protection. I suspect that really answering that would require that the originals versus the edited images would have to be submitted as evidence at some point, at which point we could take the originals before Mr. Slater's edits and restart the rest of the debate.
OTOH, a lot of the debate here seems to really be about some sort of "moral" right rather than actual legal right, despite being discussed as if it were a legal right. And there we're well into the realm of opinions rather than facts. Anomie⚔ 22:19, 24 January 2016 (UTC)[reply]
The claim that this is a trivial issue we should let go is dangerous: If a photographer has rights even with no creative decisions, Bridgeman Art Library v. Corel Corp. would surely be wrong. And that would affect thousands of images. So, yes, it's probably worth defending that line in the sand, given what ignoring it opens up challenge to. Adam Cuerden (talk) 23:13, 24 January 2016 (UTC)[reply]
Slater's in the right on this, and the behavior of some elements of our community on the matter are shameful
Disclaimer: I'm am not a lawyer. But I worked as a policy analyst amid a team of top-notch public interest intellectual property (fair use), freedom of expression and civil liberties attorneys at a non-profit public interest group for about a decade, so I'm well schooled in this stuff.
There is not a chance in hell that any court will determine that the monkey owns the copyright, nor that there isn't one. The copyright is very clearly that of Slater. This case is totally indistinguishable from an artist creating a painting by dipping worms in different colors of paint and putting them on a canvas (and, yes, that's been done, and the works are not copyrighted by worms).
Per WP:COPYRIGHT, these images should be removed from WMF servers immediately, because our taking and republishing them is unethical, and it opens the foundation to legal action for no real reason other than some editors think the images are nice, and another pack of editors has a kooky version of animal rights advocacy they want to campaign about disruptively. Lots of images are nice, but that doesn't give us the right to steal them, and Wikipedia (along with other WMF projects) must not be used for soapboxing some special-interest.
I'm a very firm supporter of open content, and an opponent of copyright extension and other intellectual property land-grabs by industry (including algorithm, software, and genome patents; and attempts to broadly trademark generic words and common names). But I'm also a strong proponent of not being a big pack of WP:DICKs, ripping off an individual just to try to make a point that is puerile and ignorant, verging on willfully stupid. If anyone thinks this is incivil, see WP:DUCK and WP:SPADE: When you are being a direct threat to the reputation and financial viability of the project, you will be called on it. I think some indefinite blocks are in order for WP:NOTHERE transgression of key legal policies. — SMcCandlish ☺ ☏ ¢ ≽ʌⱷ҅ᴥⱷʌ≼ 07:44, 25 January 2016 (UTC)[reply]
We need to hear the monkey's views on this matter. GoodDay (talk) 23:36, 25 January 2016 (UTC)[reply]
Is this intended to be some sort of parody? Why bother running an op-ed and then illustrate it with the monkey-selfie just to point out what Epic fail the entire piece is? Alsee (talk) 11:26, 31 January 2016 (UTC)[reply]
I'm sitting here sipping on a beer and I'm feeling quite uneasy. Was I swindled by the brewer who, according to what I am reading here, merely set the production stage and then processed/packaged the final result? Should I have compensated the yeast directly since they did all of the work? This is quite a moral quandary for me, as I have drank a lot of beer in my life (and no small amount this fine night). In efforts to rectify the situation, I would like to set up a trust fund for the offspring of all those yeast involved - are there any lawyers here who would be willing to advise on how to go about setting up the account? EditorFormerlyKnownAsPuddin' (talk) 04:47, 6 February 2016 (UTC)[reply]