The photo would have been unremarkable, worthless were it not taken by a monkey. The value is the novelty, the random act. Not the "setup".
I can't blame him for trying to make a buck from it, but he's really pushing he boundaries of reason by claiming copyright for a creative work that he did not create.
> The photo would have been unremarkable, worthless were it not taken by a monkey.
When I first saw that photo, I had no idea it was taken by a monkey, and I thought it was an excellent photo. The monkey's pose and expression are close to perfect.
If I had seen it with no context at all, my guess would have been that it was not a photo, but a still from an upcoming animated movie...that monkey looks like he's about to do something hilarious...and have admired the realistic texturing and the expressiveness of the model.
Except that the monkey has no concept of creative licensing, payments, royalties, etc. In this case the monkey is really just a remote shutter release made out of meat.
I could see the argument if the monkey were a 9 year-old child, the child might not fully grasp these concepts today, but you could anticipate a point where the child would understand. Much like child actor laws protecting their earnings.
I could see the wikipedia logic if there was some expectation that copyright would eventually matter to the monkey.
Forget that the monkey is an organic being... If the camera were shot up in the air in a rocket and had a pressure switch to take a series of photos at 5,000 feet (or maybe more directly at some random altitude or point in travel), who would "own" the photos? The rocket? Or the person who put the events together to capture those images in that manner.
"Except that the monkey has no concept of creative licensing, payments, royalties, etc."
That doesn't matter. Plenty of grown adults have no concept of creative licensing, payments, royalties, etc., and might never be in a position to understand them. Similarly, the 9 year old child is the creator and owner of his work at the time of its creation, regardless of the expectation that he'll eventually learn what the legalities of that creation mean. A mentally disabled or permanently incapacitated individual who is incapable of understanding copyright, and presumably never will be capable, is still entitled to copyright protections.
What this really boils down to is the monkey's personhood. A person can legally create and own intellectual property, regardless of his cognizance of it. If we believe a macaque is in some ways a person -- not a human, but a person -- then this argument holds some merit. If we do not, then it becomes more tenuous. The question isn't whether the monkey understands the ramifications of her photo; it's whether the monkey had creative agency in taking the photo.
We are talking about aspects of a human-created and arbitrated legal system. All these rules and such are essentially designed to revolve around how we treat and compensate each other.
Monkeys have no concept or participation in this legal system in the same way you wouldn't find two dogs arguing about how to handle a human sniffing their asses and who is the "dominant" one in that case.
We as a society have decided to give certain protections and recognitions to humans who are too young and/or too mentally disabled to participate in this system at the "full" level. Presumably we have decided this because we choose to recognize all humans as equal and applicable to receive a certain level of inalienable rights.
Most of our laws that relate to non-humans (animals) treat them as a form of property or otherwise seem to indicate we have no explicit desire to grant them the same rights and protections as actual humans. This could change with legal precedent, but the general consensus (IMO) is not on the side of wikipedias arbitrary ruling.
I agree with you that Wikipedia's decision is arbitrary, self-serving, and more than a little silly. But it raises interesting questions about the personhood of animals with higher intelligence. I don't think we could be having this conversation, for instance, if a cat took the photo.
And yes, all of our laws are human constructs. The question is whether we start including human-like animals under the protections and rubric of some of those laws. I don't necessarily have an answer, but I do think it's a fun intellectual challenge.
[EDIT: It's worth noting that Wikipedia's actual claim isn't so much that the monkey "owns" the photo. It's that the photographer doesn't. In other words, Wikipedia is claiming that, in de facto terms, nobody owns the photo. The monkey is its creator, but because a monkey is not entitled to legal authorship, the photo is public domain.]
What is interesting is asking our court system to consider this question. Small children have as much concept of the legal system as this monkey, yet are still afforded its benefit and if you look at our legal history this was achieved by adults demanding this.
Is it only a question of whether the monkey had creative agency in taking the photo? I'm not a lawyer, but it seems possible to say that neither the human nor monkey did.
If there were no monkey involved and the picture were taken on my camera by pure chance, can I still claim copyright on it as a photographer? Say I set the camera down, walk away, and a bug in the firmware causes it to start shooting pictures. Or maybe a rock falls from a nearby cliff and just happens to bounce off the shutter button. Is there a precedent for copyright in those instances?
These photographs have good technical merit, albeit by accident.
The thing is, there's a LOT more to making a "good" photograph than just clicking the shutter release. There are exposure and focus (which were apparently in auto mode at the time these were taken).
But more importantly, there is composition, which was entirely up to the monkey here, and not at all attributable to the human. However, we haven't seen (afaik) the original image; it seems likely that the image was recomposed (i.e., cropped) in post-production, and probably had other adjustments, e.g., exposure, contrast, etc. I'd say that in the end, the human had a pretty significant part in the final product.
I'm an amateur photographer, which you can take to mean that a whole lot of the time, my pictures don't come out of the camera looking quite the way I intended them to. And that's just another way of saying that what did come out of the camera was just an accident. Many of my best prints were like this, and I "rescued" them in post production, fiddling around to make something nice from something that in its found form was unremarkable. In these cases, I'd like to think that I'm still the artist responsible for it.
I think my conclusion, then, is that the human probably is deserving of the credit for this work.
That's not a very endearing way to make your point. If enough people care about the rights of non-human sentient beings, we can envisage (more, better) laws being made protecting their rights. Think of the good the licensing money from this picture could do in e.g. conserving the habitat of that monkey.
I appreciate your comment.
I made those statements particularly to try and evoke a different perspective, they do not reflect how I view/value the monkey in the grand scheme of things. I think what can happen in arguments like this is that people let personal feelings/compassion cloud their judgement. Where does that slippery scale end? What if it was a dolphin that took the picture? A dog? A reptile? A single-cell organism?
Yes, some of those examples are absurd, but they are all non-human organic life forms. Are we saying the more "personable" animals should be extended some human-like copyright rights because we can relate to them in some manner? (the Pulp Fiction conversation about "filthy animals" pops in my head here).
You talk about licensing money, but who would set the licensing fee, collect that fee, and then apply it? I could easily see that becoming a method for lawyers to strip human photographers of copyrights in certain cases and then suck up the majority of the licensing fee for "administrative purposes".
I think the monkey is "cute". I think this is a very interesting case. I do not think legal precedent is on the side of wikipedia. I do not think this is by any means a common enough problem (or will become so) that we need to have exception cases for photographs where the shutter release was pressed by non-human living organisms.
> What if it was a dolphin that took the picture? A dog? A reptile? A single-cell organism?
The 'slippery slope' argument almost never works. Women got the vote and society didn't crumble, au contraire. Dolpins can get some rights now reserved only for humans (e.g. better habitats in which their babies don't die abnormally often), without that same right being extended to reptiles.
> Are we saying the more "personable" animals should be extended some human-like copyright rights because we can relate to them in some manner?
It's a choice. A general principle of awarding these higher-sentience animals some limited form of personhood could improve their circumstances. Perfect is the enemy of the good.
> I do not think this is by any means a common enough problem [...]
If it's in a court, I would ask for proof that the animal took the photo. Could have been savvy marketing. No one is trustworthy when fighting in a court.
If the story is verified, I sympathize with the photographer. Accidents are part of the venture.
I'd bet that that idea has already been tested in the courts. I believe that the result is that the guardians of the child hold the rights in trust. A child is still human though, and courts do not yet assign (to my knowledge) property rights to non-human animals.
Which muddies that particular example, but the spirit of the example is unaddressed. For example, if a human adult with no understanding of what a camera is or what the act of taking a picture entails[1] took the picture by accident, would they not deserve the rights?
>>However, I imagine you meant that if a camera were dropped among these people, would they have the rights to the photos they took? Tricky... but I guess yes, according to the law... (I am not a lawyer).
This was the point I was trying to make, animal or no, that matters, but I don't think intent does.
Intent certainly matters in the domain of intellectual property law.
For example, imagine that I were to instruct someone to make a device for me, and they made it exactly according to my design, and it performed some novel function that I had predicted it would. Under current law, I would be the inventor, not the person who constructed the device. This is since the "inventive step" was performed by myself. I'm not however sure how this relates to copyright (the issue at hand in the OP)...
There are many situations where the courts will provide "protection" to people who are not perceived to be capable of exercising their rights in the usual manner. Such cases are often referred to as "wards of the court", and include not only children but also adults with diminished capabilities to understand court proceedings.
I imagine that people from uncontacted tribes would fall into the same category, due to their lack of experience with the courts. in practice, though, I also imagine that the courts would not be very interested in any appeals they make...
In any case, none of the above applies to monkeys.
I can't blame him for trying to make a buck from it, but he's really pushing he boundaries of reason by claiming copyright for a creative work that he did not create.