
Monkeys Don't Do Fair Use; News Agency Tells Techdirt To Remove Photos - nextparadigms
http://www.techdirt.com/articles/20110712/01182015052/monkeys-dont-do-fair-use-news-agency-tells-techdirt-to-remove-photos.shtml
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dkarl
_Michael, regardless of the issue of who does and doesn't own the copyright -
it is 100% clear that the copyright owner is not yourself.

You have blatantly 'lifted' these photographs from somewhere - I presume the
Daily Mail online. On the presumption that you do not like to encourage
copyright theft (regardless of who owns it) then please remove the
photographs._

The insidious assumption here is that someone must own these photos, if not
the author then somebody else, because everything has an owner.

Once explicitly articulated and challenged, this assumption will be defended
on the grounds that anything that is not owned is worthless, and assigning
ownership gives it value. If this viewpoint is resisted, and if it eventually
triumphs, we'll find that those who resisted it own nothing, and those who
forced it on the rest of us own everything.

This has happened before.

~~~
danking00
My first thought, after reading my parent, was Native Americans (really,
indigenous peoples worldwide) and European colonists. Is my parent referring
to other cases as well?

~~~
dkarl
Yep, that's the example I had in mind.

~~~
rtperson
The other example is the Enclosure movement in Britain
(<http://en.wikipedia.org/wiki/Enclosure_movement>), where nobles simply
stepped in a seized land that had been for common use, in some cases throwing
people out of their homes to do so.

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robtoo
(IANAL)

The lawyer's message doesn't appear to be a DMCA takedown notice at all, but
rather a cease & desist, which has nothing like the same weight.

The lawyer's messages don't appear to be claiming that David Slater owns the
copyright on the monkey's photos. In fact, they appear to be very carefully
worded so as not to claim this.

~~~
killerswan
Exactly. This is one of the best copyright disputes I've seen in years.

~~~
robtoo
I'm not sure it even qualifies as a copyright dispute. (Although the copyright
issues raised in techdirt's blog post last week are fascinating.)

The goal isn't copyright enforcement at all because noone (up to and including
David Slater's own lawyers) is sure who does own the copyright.

Rather, it appears to be an attempt at preserving David Slater's revenue
stream by paying lawyers to rattle a few sabers.

~~~
noonespecial
Don't assume that Slater authorized this. Lawyers on retainer do this sort of
stuff all the time while make-working billable hours for themselves. One thing
I've learned is that you _really_ have to watch what your lawyers are doing or
they'll end up charging you $350/hour to publicly embarras you.

~~~
westicle
If that is the case you have your lawyers on a very sloppy retainer.

Going outside the terms of a retainer is classed as professional misconduct
where I'm from. A lawyer should not take any action on your behalf without, at
the very least, implicit instructions to do so.

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mkr-hn
This is why I like Techdirt. It's what TechCrunch tries (and fails) to be: A
rowdy tech blog that makes a good point without going too deep into hyperbole.
I'm curious to see what the monkey has to say about all this. When will The
Onion pick the story up?

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rglover
Considering the fact that it's fairly obvious that the monkey's took the
photos themselves, everyone should quit fighting and marvel in the notion that
a _fucking monkey took a picture of itself_. Next step, put it up under
creative commons and call it a day.

~~~
zck
If you don't own the copyright to a photo, you can't put it under Creative
Commons.

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sliverstorm
Am I the only one too busy being unnerved by that first picture to worry about
copyright? There's so many things going on there- the "smile", the "eyebrows".
The way it looks so convincingly real that it's got to be fake, but it's
real...

On a side note, I have always understood monkeys were smart. But I don't think
I ever really grasped how cogent until I stared this monkey in the face.
Besides being red, looking into that monkey's eyes feels just like looking at
a person. Maybe that's why I'm unsettled.

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marshray
I think Techdirt should immediately write up a copyright assignment contract
and see if monkeys like to scribble with pens.

Failing that, the monkeys' owner could be a real wild card here.

~~~
tripzilch
That would be the national park in Indonesia.

The monkeys are obviously under-aged.

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juiceandjuice
The best rebuttal would be to send a cease and desist right back. I mean...
they can't prove that they have the copyright either.

~~~
joejohnson
I don't think that would be a good idea either:

"...sending a takedown notice, if you are not the copyright holder, is what's
actually against the law."

~~~
chc
As noted in other comments, this notice does not even mention copyright, so
that law is irrelevant.

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teyc
Perhaps adding the copyright notice to the photo makes it a derivative work,
and is therefore protected by copyright?

Another take is that it is the news report that is copyrighted, and putting
the main material of the report (the photo) which in itself wasn't subject to
copyright represents the substance of the report rather than fair use.

~~~
delinka
Even if the report (containing the photos) is protected under copyright (and
it is), quoting the article is still fair use. Extracting the photos to
comment on them is still fair use. Reproducing a substantial part of the
report would almost certainly infringe on the copyright. Arguing that the
photos are a "substantial" part of the report would not convince a court.

~~~
teyc
> Arguing that the photos are a "substantial" part of the report would not
> convince a court.

I'm reminded of a photo of the space shuttle taken by someone in a plane.
Wouldn't the substance of a report about this event be the photo itself?

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serichsen
If the monkeys have the copyright, then (in current legislation) no one may
reproduce the photos, unless he somehow gets the monkeys to convincingly
understand copyright and convincingly express their will to license him.

I think that this is absurd.

~~~
estel
I imagine that the law would be interpreted to say that monkeys are not
legally allowed to hold copyright, and the works in questions therefore have
no copyright.

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mikebike
In this case, the monkey "borrowed" somebody else's camera, without
permission, and took the picture in question. If I steal somebody's camera,
and take photos with it, do I still own the copyright?

~~~
kevinpet
Yes.

If I break into your apartment and write a poem using your pen, do I own the
copyright?

~~~
jrockway
If I write code at work, do I own the copyright?

~~~
eli
You have a good point. Did the monkey get any bananas? It could be a Work for
Hire situation.

~~~
joshu
That is an offensive stereotype of monkeys.

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ruethewhirled
Anyone considered the monkeys didn't take the pictures and it was just set up
to look like they did. Now they're kinda stuck because the only reason for the
interest in the photos is because they were taken by monkeys, so they can't
say they were actually taken by a person who holds the copyright to them
because they will lose all there value

Based on the 3 photos in that article they all seem to be in focus and well
composed which seems a bit unlikely, although not impossible.

~~~
jbuzbee
The original article talks about how hundreds(?) of photos were taken and only
a few were in focus.

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ChuckMcM
You should point them at Righthaven's (non) case. It's absolutely true that
only the copyright holder can issue a takedown and its also true that you
can't assign copyright to a lawyer for the purposes of suing people.

I also think the precedents from some of the Righthaven cases would bolster
your case that you're use was covered by fair use (at least according to one
judge :-)

~~~
monochromatic
> It's absolutely true that only the copyright holder can issue a takedown and
> its also true that you can't assign copyright to a lawyer for the purposes
> of suing people.

Neither of these statements is true.

~~~
ChuckMcM
Blue beat me too it but here is an Ars link:
[http://www.wired.com/threatlevel/2011/06/fair-use-
defense/?u...](http://www.wired.com/threatlevel/2011/06/fair-use-
defense/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+wired%2Findex+%28Wired%3A+Index+3+%28Top+Stories+2%29%29)

I read the decision linked by Groklaw as I recall but can't find it right now.

Judge Pro ruled you could not sue for copyright infringement if you weren't
the holder of the copyright.

Judge Hunt ruled that you could not transfer enough copyright to sue but not
all copyrights.

I've not completely Sheperded that case but I'm coming up blank on any appeals
for those particular points.

~~~
Natsu
The way you worded it before, you made it sound like you couldn't sue over a
copyright that was transferred to you. I don't believe that's true.

What is being said in the Rightshaven case is that you can't transfer just the
right to sue without giving them any of the exclusive rights protected by
copyright. I believe that, had they transferred the whole copyright, or at
least some of the exclusive rights protected by the copyright, Rightshaven
would have had standing to sue.

In short, I believe that bluedanieru's formulation is the correct one. IANAL,
though, and this kind of stuff turns on hair-splitting interpretations of
words.

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anamax
If Cater's argument is correct, then surely Cater should also remove the
photos because Cater also doesn't own the copyright.

~~~
bradleyland
His core argument is that their use falls under "fair use", so there is still
no need to remove the photos.

~~~
wisty
In legal situations, you don't have a "core argument". You have as many
parallel arguments as possible, even if they are somewhat contradictory. One
argument is that the photos are un-copyrightable (public domain), as they are
not the creative works of a human. Another argument is that _if_ the photos
are copyright, it's "fair use". He's keeping one foot on both boats, in case
one of them sinks.

~~~
anamax
Another argument is that neither Cater nor the camera's owner own the
copyright. As a result, neither one can demand a takedown.

------
geraldalewis
I can set my Canon to take a picture after a 10 second delay, so that I don't
have to be in the presence of my camera to take a picture. Canon does not own
the image, simply because it activated the triggering mechanism.

~~~
danilocampos
You activated the triggering mechanism. Its delay is inconsequential, whether
it is 10ms or 10 minutes, since you are the proximate cause of the capture.

These primates composed and snapped the photos themselves, unaided, on their
own initiative. The providence of the camera doesn't make the camera's owner
the copyright holder, any more than using a rented camera makes the rental
company owner of the resulting images. Composition and shot timing are the two
primary creative acts in photography — the monkeys did both.

~~~
Terretta
In further support of this, the photographer didn't "activate the triggering
mechanism" by even intentionally leaving the camera in hopes to have them take
the photos.

I'd argue that a tripwire or any other mechanism of photographer intent to
have the animals photograph themselves, would be akin to setting the timer.
But, he says it was accidental:

> _One of them must have accidentally knocked the camera and set it off
> because the sound caused a bit of a frenzy, said Slater, 46._

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bluedanieru
He misses the plot a bit with the last sentence in the article:

 _It's unfortunate that a company that has built a business around copyright
appears not to understand these basic facts._

I think when it comes to copyright and other IP and the actions of rights
holders, it has become safe to apply the inverse of Hanlon's Razor i.e. never
attribute to stupidity that which can be adequately explained by malice. _Of
course_ these assholes know what they're doing, they just _don't fucking
care_. IP best practice is to assert virtually any right you can dream up,
justified or not.

So, surely it is _unfortunate_ to have happened, but that is not to say it is
not entirely expected. More newsworthy would be if it hadn't.

------
AndrewMoffat
I can only hope these instances get more and more ridiculous, with higher
profile people, until _something_ finally gives.

