Talk:Monkey selfie copyright dispute/Archive 2

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Archive 1 Archive 2 Archive 3

Where is the decision from WMF legal?

I expected to find a note about this at https://transparency.wikimedia.org/content.html but did not find anything. Where, exactly, can we read the exact words of the WMF legal department in rejecting the DMCA takedown notice? --Guy Macon (talk) 00:08, 15 September 2017 (UTC)

Was there a DMCA notice? Newsweek says "Also, Wikimedia says that it never received a DMCA takedown request from David Slater or Caters News Agency; Slater disputes this and says that he has proof that he has shared with lawyers." [1]. My speculation (and only speculation) is that Slater made some sort of complaint, probably in writing of some kind, but not in the form of a § 512(c) DMCA notification. TJRC (talk) 00:24, 15 September 2017 (UTC)
From [ http://www.bbc.com/news/technology-28672121 ]:
"The Wikimedia Foundation has also published its first transparency report - following a similar practice by Google, Twitter and others. It reveals that the organisation received 304 general content removal requests between July 2012 and June 2014, none of which it complied with. They included a takedown request from a photographer who had claimed he owned the copyright to a series of selfies taken by a monkey."
The BBC got that information from somewhere, presumably somewhere here or on meta. I would like to see the actual words of the WMF. --Guy Macon (talk) 00:36, 15 September 2017 (UTC)
Are any of the DMCA notices online? I don't see them just summaries of a few. A summary of the Slater one is on the transparency page as it appeared when the BBC published the article: [2] (via Wayback Machine).
The BBC uses the same terminology "takedown request" as WF does; but it's not clear that that actually means a DMCA notification that meets the statutory requirements.
I suspect this short blurb is where the BBC got its information, and that there's not much more online (unless they do post copies of the notifications somewhere). TJRC (talk) 03:18, 15 September 2017 (UTC)
Best I can find is [3] (scroll down to Jan 2014), and an interview in the WaPost here [4]. --MASEM (t) 13:29, 15 September 2017 (UTC)
There is something of an archive in WMF:Category:DMCA and its subcats, but it says "It does not include the numerous requests that were found to be invalid or otherwise inappropriate where no content was removed," which probably includes Slater's. It's also not easy to divine the works or parties without actually opening and looking at each one. Nothing obvious from Slater jumps out at me. TJRC (talk) 17:20, 15 September 2017 (UTC)

Original statement by David Slater?

I am seeing a lot of quotes from David Slater but as far as I can tell they were all made after he was engaged in this copyright dispute. I would like to see a source for the first time he described how the photo came to be. --Guy Macon (talk) 00:40, 15 September 2017 (UTC)

Links are found in the article and in the past discussions. There was the early story in The Daily Mail, July 4, 2011 and in The Telegraph, July 4, 2011 and another report in Amateur photographer, July 5, 2011. I suppose you can say that those were before the dispute, because it is on July 7, 2011 that Techdirt published their story [5] and then it is a few days later (between July 7, 2011 and July 12, 2011) that Caters (representing Slater) asked Techdirt to remove the photos [6]. -- Asclepias (talk) 13:20, 15 September 2017 (UTC)
At last something WP and Daily Mail can agree on - continuing to publish the picture! How comforting (?) Martinevans123 (talk) 13:24, 15 September 2017 (UTC)
As is typical of The Daily mail, they stole the text from The Gaurdian[7], added a few things that aren't true to make it more lurid and better clickbait, and published it without attribution as if it was their own work. There are multiple examples of them doing that at WP:DAILYMAIL.
So it looks like The Guardian was the first to tell the story. According to that article[8] "it wasn't long before the crested black macaque hijacked the camera and started snapping away" and "He must have taken hundreds of pictures by the time I got my camera back"
The next day he told Amateur Photographer a slightly different story.[9] He said that his camera had been mounted on a tripod when the primates began playing around with a remote cable release as he was trying to fend off other monkeys.
Several day later, his story changed again. He told the BBC "I became accepted as part of the troop, they touched me and groomed me... so I thought they could take their own photograph. I set the camera up on a tripod, framed [the shot] up and got the exposure right... and all you've got to do is give the monkey the button to press and lo and behold you got the picture."[10]
It would be WP:OR to suggest that he changed his story in order to make his copyright claim stonger, but we could certainly document the changing story in the article.
It would also be interesting to look at multiple photos from the incident and seeing if the background is the same, as would be expected if the camera remained on the tripod. --Guy Macon (talk) 06:19, 16 September 2017 (UTC)
See also Caters news agency's own presentation of the pictures. The publication in The Daily Mail is dated July 4, the publication in The Guardian is dated July 5 [11]. About the background, you can compare the monkey selfies with the picture of Slater and of the tripod by the monkey. -- Asclepias (talk) 17:05, 16 September 2017 (UTC)
I agree that it would be WP:OR to suggest that he changed his story in order to make his copyright claim stronger, as it is just as likely that his initial statements were stretching the truth a bit to better sell the idea of a "Monkey Selfie" to the press, and starting a day later, once the image had gained worldwide attention but before any copyright issues cropped up, he fell back to a more accurate version of the story. --Ahecht (TALK
PAGE) 18:25, 13 November 2017 (UTC)
Guy, that is quite amazing. Thank you for that very revealing bit of detective work. For me, that really puts the whole episode into perspective. I think it would be a very good idea to document the changing story in the article and let the readers decide for themselves. Martinevans123 (talk) 17:34, 16 September 2017 (UTC)
This article contains a misleading quote. The article says "I put my camera on a tripod with a very wide angle lens, settings configured such as predictive autofocus, motorwind, even a flashgun, to give me a chance of a facial close up if they were to approach again for a play. I duly moved away and bingo, they moved in, fingering the toy, pressing the buttons and fingering the lens. I was then to witness one of the funniest things ever as they grinned, grimaced and bared teeth at themselves in the reflection of the large glassy lens." when [A] in his his original statement he said ""He must have taken hundreds of pictures by the time I got my camera back", and [B] the tripod is clearly visible in the second picture that The Guardian published.[12] We need to edit the article to reflect his changing story. not a single quote that appears to be designed to strengthen his legal claim. Who want to make the edit? Does anyone have an objection? --Guy Macon (talk) 07:47, 17 September 2017 (UTC)
@Guy Macon: Editing the article to present the changes in his story seems entirely reasonable. There's no reason why Wikipedia shouldn't talk about what his original story was, as reported in reliable sources, in addition to his later story, also reported by reliable sources. ---- Patar knight - chat/contributions 20:37, 27 September 2017 (UTC)

I finally got around bto making the changes. Please check for accuracy and typos. --Guy Macon (talk) 01:35, 5 November 2017 (UTC)

This section comes across like a major hit job on Slater. It's hugely one-sided. What did Slater do to Wikipedia that makes Wikipedia editors hate him so virulently? Vaughan Pratt (talk) 07:53, 13 November 2017 (UTC)
@Guy Macon: I edited it to remove some OR and WP:SYNTH and fix the citations that 149.101.1.119 hadn't already taken care of. Is there a reason you got the date of nearly every single source you added wrong? --Ahecht (TALK
PAGE) 18:54, 13 November 2017 (UTC)

More detective work needed

What was the date when http://www.djsphotography.co.uk/original_story.html was published?

What are the time stamps for the photo where Slater is standing next to the tripod and holding out his hand and the monkey selfie photo? How far apart they are in time could strengthen or weaken the undated claim about the sandbag in DJS Photography. --Guy Macon (talk) 01:35, 5 November 2017 (UTC)

What is the logic here?

Although I was trained as a physicist I made my career primarily as a logician conducting research and teaching at MIT and Stanford for 30 years. In that capacity I have to say I find the logic of this article and talk page impossible to follow.

The central argument justifying Wikipedia's claim that the photo is in the public domain seems to be based on the proposition that a monkey can't have a copyright to anything.

While I have no problem with that proposition, I utterly fail to see its logical relevance to the question of whether Slater is entitled to copyright of a photo he went to great lengths to produce.

Had the object been to kill the monkey instead of photographing it facing the camera, Slater could have employed similar ingenious techniques involving replacing the camera with a gun and getting the monkey to shoot itself. Surely whatever reasoning Wikipedia has employed to defend its claim that Slater is not responsible for this photo, and therefore has no claim on its copyright, would also have to absolve Slater of any responsibility for the monkey's shooting death. (And by its line of reasoning PETA would have to judge the death a suicide.)

Which of course is nonsense. If you hire a hit man to murder someone, the law most certainly does not consider you innocent of that murder, the fact of your not having pulled the trigger notwithstanding. And if by some trick you get the victim to pull the trigger, that does not make it a suicide!

It seems to me that Wikipedia is perpetuating an egregious injustice by refusing to acknowledge Slater's creativity, ingenuity, and photographic expertise in not only acquiring this terrific photo using his equipment and techniques but in exercising his judgment, not that of any of the many monkeys whom he persuaded to click the button for many such selfies, in selecting the best of a substantial gallery of such.

For Wikipedia to claim that this photo is not the work of a human makes a monkey of Wikipedia. Vaughan Pratt (talk) 07:38, 13 November 2017 (UTC)

This has WP:NOTAFORUM issues, but the claim that Wikipedia is in the wrong isn't supported by the text and citations in the article. It was Techdirt that originally argued that the work had non human authorship under US copyright law, and Wikipedia went along with this. In December 2014, the US Copyright Office specifically gave "a photograph taken by a monkey" and "a mural painted by an elephant" as examples of things that it would not copyright. Wikipedia doesn't make the rules in the USA, the US Copyright Office does. Some people have suggested that David Slater might have better luck in the European courts, but that's another story.--♦IanMacM♦ (talk to me) 08:41, 13 November 2017 (UTC)
Yet again, that's misquoting the US Copyright OfficeCourts. It said that monkeys couldn't hold copyright on their photos, not that such works weren't copyrightable. They are still silent on the question of whether anyone else can hold such copyright, and of course on the European claims. Andy Dingley (talk) 10:01, 13 November 2017 (UTC)
The exact wording of the revised December 2014 version is "To qualify as a work of 'authorship' a work must be created by a human being.... Works that do not satisfy this requirement are not copyrightable. The Office will not register works produced by nature, animals, or plants." It then gives as examples "a photograph taken by a monkey" and "a mural painted by an elephant" (screenshot) Obviously this gets Wikipedia off the hook, but some people are still not happy.--♦IanMacM♦ (talk to me) 10:18, 13 November 2017 (UTC)
But that's only from the compendium (which is advisory, not binding). There's still no court case over this, that's not what the court case ruled (it ruled that elephants couldn't hold copyright on their paintings). Andy Dingley (talk) 10:40, 13 November 2017 (UTC)
Presumably, if there are any elephants reading this, who have created a notable mural, they are more than welcome to write a Wikipedia article about it, and illustrate it with one or more photos. But, to be on the same side, they'd be well advised to get a monkey to take the photos? Martinevans123 (talk) 10:53, 13 November 2017 (UTC)
This is actually very simple from a legal perspective. Slater has threatened to sue Wikipedia but has chosen not to actually done so. (In the US, not having money is no obstacle; if you can convince a lawyer that you have a case against a deep-pockets organization like Wikipedia, he will take the case for a percentage of the award, if any). When PETA sued him, he settled out of court. It appears that he wants to talk about how he was wronged but doesn't want an actual court to make a decision on whether he owns a copyright on the material. This is pure speculation, but looking at Monkey selfie copyright dispute#Background he may not want to have the various stories he has told be subject to eyewitness testimony or to a close look at all of the photos and their timestamps, with the attendant risk that a judge or jury would rule that his copyright claims are invalid.
I find his most recent claims that "he is considering alternative careers as a dog walker or tennis coach" to be far from compelling. If you are such a failure as a photographer that you would have gone broke if not for a monkey grabbing your camera and taking a selfie, maybe you should quit and become a dog walker. Nobody forced him to spend a bunch of money on lawyers. --Guy Macon (talk) 11:59, 13 November 2017 (UTC)
We're all assuming his tennis pupils are going to be human? Martinevans123 (talk) 12:31, 13 November 2017 (UTC)
"Nobody forced him [Slater] to spend a bunch of money on lawyers". That's incorrect, it was PETA who took legal action against David Slater, who never initiated any legal action over this in the US courts. This is a common myth. The irony is that even if Wikipedia had given Slater £10,000 to keep him happy, it would almost certainly have been spent on defending Naruto et al v. David Slater. Slater was reluctantly dragged into Naruto et al v. David Slater in 2015 and was so sick of it by 2017 that he would have signed any document that was put in front of him just to get it out of the way.--♦IanMacM♦ (talk to me) 12:58, 13 November 2017 (UTC)
In some ways, though, I am surprised Slater has chosen not to sue Wikipedia. Cameras are not naturally occurring entities in Indonesia, or anywhere else for that matter. Slater had to go to considerable trouble to arrange for a camera to be in the hands of an Indonesian crested macaque, regardless of who held the camera, the direction in which it was pointed and who pressed the button. He also had to retrieve the camera and do all the necessary technical stuff to produce the images. He may have had no initial intention for the monkey to take it's own picture, but it was only his 99.5% of the effort that made it possible. I also think there may still be a problem with the title of this article. Obviously a macaque has a certainly level of consciousness. But I'm really not sure it has a sufficiently well-developed notion of "self", nor of how photography works, to be able to truly take "a selfie". Martinevans123 (talk) 13:28, 13 November 2017 (UTC)
Who put a gun up to slater's head and forced him to spend money defending Naruto et al v. David Slater? He was free to ignore the court case with the probable result of the court ruling that PETA had not proven their primary claims (that a monkey can hold a copyright and that PETA is the legal representative of the monkey). A copyright claim is simply a statement claiming "I own the rights to X. If you copy X you owe me money and I reserve the right to sue you for it." If you are unwilling to sue someone who says "no, Y owns the right to X" than your copyright claim is useless. You don't win a legal ownership dispute by going on the internet and complaining. You win it by going to court. — Preceding unsigned comment added by Guy Macon (talk • contribs) 17:24, 13 November 2017 (UTC)
I had no idea he could just ignore it. I had assumed that if he hadn't fought it would automatically have been decided against him. Is this clear in the article? Martinevans123 (talk) 18:29, 13 November 2017 (UTC) p.s. do you think monkeys can "take selfies"?
It's an interesting point, although it has some WP:OR issues. Suppose that Slater had said "Well, **** this for a game of soldiers, I am not going to spend one penny on defending Naruto et al v. David Slater"? What would have happened next? I'm not a legal expert, and of course this is now hypothetical anyway.--♦IanMacM♦ (talk to me) 18:34, 13 November 2017 (UTC)
If he hadn't defended it, PETA could've gotten a summary default judgement against him and come after him for damages (which could be in excess of what he's earned on the photograph). While Slater isn't a US citizen, they could still garnish earnings he made from selling or licensing his photographs through US companies such as Blurb. --Ahecht (TALK
PAGE) 21:57, 13 November 2017 (UTC)
I'm now quite baffled. What you say directly contradicts what Guy says above. Let me know when you've agreed some legal procedure facts. Thanks. Martinevans123 (talk) 22:38, 13 November 2017 (UTC)
Ahecht is simply wrong. PETA sued, asking that the monkey be given the copyright and for Slater to return the profits he made from selling (in PETA's view) material that he had no right to sell, not being the owner of the copyright. See [ https://www.mediapeta.com/peta/PDF/Complaint.pdf ] This is the same as it would be with anyone else who infringes a copyright -- you don't get to keep the money once a court rules that someone else owns the copyright. "In excess of what he's earned on the photograph" is simply wrong. And in fact, it turns out that PETA was willing to settle for 25% of what he earned (not surprising; their goal isn't to extract cash but rather to make a point). --Guy Macon (talk) 23:59, 13 November 2017 (UTC)
People sue for estimated damages for copyright infringement all the time, which can often exceed any profits earned by the infringer (as you can sue for copyright infringement even if the infringer made no money whatsoever, see [13] or [14]). The lawsuit specifically asked for Naruto to have "the right to recover damages and other relief for copyright infringement." --Ahecht (TALK
PAGE) 00:19, 14 November 2017 (UTC)
That's not PETA asking for anything. That's PETA describing the nature of the case and what they believe are the basic legal principles involved. The actual wording of what PETA was asking for is:
"The Next Friends seek an order of the Court permitting PETA to administer and protect Naruto’s rights in the Monkey Selfies on the condition that all proceeds from the sale, licensing, and other commercial uses of the Monkey Selfies, including Defendants’ disgorged profits, be used solely for the benefit of Naruto, his family and his community, including the preservation of their habitat, in consultation with Dr. Engelhardt and other third parties who are already working for such benefit and preservation. PETA’s and Dr. Engelhardt’s services will be provided without compensation in furtherance of their respective charitable animal protection and scientific missions." Source: [ https://www.mediapeta.com/peta/PDF/Complaint.pdf ]
The "disgorged profits" are the profits Slater already made. The rest is about future profits. Yes it is true that people sue for estimated damages for copyright infringement all the time. No it is not true that PETA sued for estimated damages in this particular case. They sued for Slater's profits from the alleged copyright infringement, no more, no less. It is misleading to claim that they sued for more than that or that any court would automatically give PETA something they never asked for. --Guy Macon (talk) 16:54, 14 November 2017 (UTC)

Removed OR

I removed the following sentence from the article because it contained original research: "The tripod with no camera on it and Slater reaching for the camera that the monkey was holding can be clearly seen in the photographs that Stater published on his own web site (he has since removed them) and which The Guardian republished on 5 July 2017."

  • There is nothing published in reliable sources that the tripod in the image was "the tripod" Slater claimed the camera was mounted on.
  • There is nothing published in reliable sources that Slater was reaching for the camera in that image, and not simply letting the monkey close to him hold his finger (Slater claims under that same image on his own website "I held out my hand and WOW, one held my hand back.").
  • There is nothing published in reliable sources that the monkey in the foreground was holding the camera, and that it wasn't mounted on a second tripod.
  • The image wasn't removed from Slater's website, it is still available about halfway down the page at http://www.djsphotography.co.uk/original_story.html

--Ahecht (TALK
PAGE) 18:36, 13 November 2017 (UTC)

"Monkey Selfie Photographer Says He's Now Going To Sue Wikipedia"

This is on Techdirt today. Personally, I think that this has a good deal of WP:CRYSTAL at the moment, as he made a similar threat in January 2016 but it hasn't happened as yet. But you never know.--♦IanMacM♦ (talk to me) 18:52, 14 November 2017 (UTC)

This past weekend's This American Life also claimed that Slater was planning on suing: "About Wikipedia, they've still got the monkey selfie up there for anyone to download. They still claim it's in the public domain. David will have to sue them to get it taken down, which he says he plans to do." --Ahecht (TALK
PAGE) 18:58, 14 November 2017 (UTC)
I just restored the main image to aid the credibility of his case. Martinevans123 (talk) 19:01, 14 November 2017 (UTC)
No you didn't. [15][16] And next time please use an edit summary explaining what you are trying to accomplish. --Guy Macon (talk) 02:09, 15 November 2017 (UTC)
Would you care to explain that just once more? Martinevans123 (talk) 08:06, 15 November 2017 (UTC)
I have no idea what I was thinking there. I treated an addition as if it were a removal. Note to self: next time, smoke crack after editing Wikipedia... --Guy Macon (talk) 10:01, 15 November 2017 (UTC)
You could train someone else to do that, you know. Martinevans123 (talk) 10:46, 15 November 2017 (UTC)
And just because he's stated that, we appear to have WMF's blessing to assume the image is free, so until we're ordered by WMF (who might be ordered by a court) to take it down, we shouldn't be changing that. --MASEM (t) 00:54, 15 November 2017 (UTC)
Agree. If he actually files a lawsuit, we may want to reconsider the decision, ideally with input from Wikimedia Legal. --Guy Macon (talk) 02:09, 15 November 2017 (UTC)
Re this edit: it seems that the image was removed, but there is no consensus to do this as long as WMF legal says that is is OK.--♦IanMacM♦ (talk to me) 06:14, 15 November 2017 (UTC)
I have no idea what I was thinking there. I treated an addition as if it were a removal. Note to self: next time, smoke crack after editing Wikipedia... --Guy Macon (talk) 10:01, 15 November 2017 (UTC)
Even in the extremely unlikely case that this image is covered by copyright, it would fall under fair use. That means there is absolutely no legal issue with hosting the image on Wikipedia, and as a result, the image should stay on the article.  ONR  (talk)  07:54, 15 November 2017 (UTC)
A claim of fair use would have to include a change to the copyright status of the image on commons, and would almost certainly limit us to a lower-resolution version. There does exist a claimed legal issue. Slater claims copyright. Wikipedia rejects his claim. Until a court renders a decision, there it stands. No additional words that Slater posts on various Internet forums will change that. Given that Slater "has since changed his story to make it appear that he had more of a role in the photo, but that was not his original story at all" (source:[17]) and the fact that photos have time stamps on them that he would have to reveal during the trial, it would be interesting to see which story the timestamps from the images (including the hundreds of unpublished blurry shots of vegetation) and any testimony from eyewitnesses supports. I wouldn't hold my breath waiting for him to file that lawsuit. I'm just saying. --Guy Macon (talk) 10:01, 15 November 2017 (UTC)
And what would happen if Slater actually posted here with a "legal threat"? Martinevans123 (talk) 10:49, 15 November 2017 (UTC)
We'd take appropriate admin action - en.wiki is not the place to put a legal threat regardless of how "right" one might be. Slater or his lawyers should be aware that any action against WP has to be filed at the WMF. --MASEM (t) 15:10, 15 November 2017 (UTC)
So hiring a trained monkey is out the question, I guess. I'm presuming all this exciting legal action stuff has to happen in America, as that's where the WP servers are located. Martinevans123 (talk) 16:00, 15 November 2017 (UTC)
Wouldn't he have to register the copyright with the U.S. Copyright Office first (a registration which they have denied)? Would he first have to sue the U.S. Copyright Office and get a court order forcing them to register his copyright before suing Wikipedia for infringing on his copyright? From a practical standpoint, within minutes of a court ruling that he owns the copyright the image would be deleted from Wikipedia. --Guy Macon (talk) 18:37, 15 November 2017 (UTC)
We're definitely getting into IANAL territory here (and thus possibly getting off topic), but it is more the case that WMF (and TechDirt too) determined, from established Copyright office publications (which at the time did not explicitly spell out "monkey selfie" but since added it), that the image was PD. It was WMF/TechDirt that (if it was the case) "stripped" the images of Slater's possible copyright by calling them PD based on what the Copyright Office said at the time. It's the WMF/TechDirt's interpretation of copyright law that Slater can fight in court, though now that the Copyright Office effectively agrees, I would not be surprised that if there be court action, WMF/TechDirt would request support from the Copyright Office to support their side. --MASEM (t) 18:50, 15 November 2017 (UTC)
No. First, the requirement is not to register; it's to either register or try to register and get refused by the Copyright Office,17 U.S.C. § 411(a). So if refused, a registration applicant can take his chances on litigating without the registration, although the Copyright Office has the option of joining the suit and explaining why the work is not subject to copyright. He can sue the Copyright Office under the Administrative Procedures Act to force registration, 17 U.S.C. § 701(d) but does not need to; he can go straight against his purported infringers without the registration.
Second, the requirement to register (or get refused) applies only to US works.17 U.S.C. § 411(a). Since Slater is not a US national and his work was not first-published in the US (there's a little bit more to it, but that's the gist, see United States work in 17 U.S.C. § 101), he's not under that obligation. If the US were to attempt to apply the registration requirement to non-US works, it would violate Article 5(2) of the Berne Convention, which requires that the ability of a copyright holder to assert copyright "shall not be subject to any formality" (and registration is a classic "formality"). TJRC (talk) 23:28, 15 November 2017 (UTC)
What seems to have annoyed some people is that Techdirt and Wikipedia used their own interpretation of the guidelines at the time to say that the photo was ineligible for copyright. In December 2014, the revised rules explicitly gave "a photograph taken by a monkey" as an example of a non copyrightable work. It's a subtle distinction, and matters are complicated by the fact that Slater is not a US citizen and the photo was not taken in the US.--♦IanMacM♦ (talk to me) 06:44, 16 November 2017 (UTC)
Thanks, TJRC. So Wikipedia having servers in the US has nothing to do with it? Martinevans123 (talk) 08:12, 16 November 2017 (UTC)
The entire debate is being driven by what US law has to say about the matter, even though Slater isn't a US citizen. We've been through this before with other controversial material, and although Wikimedia projects are mostly hosted under US law, there are also servers in the Netherlands [18] so European law becomes involved at some stage.--♦IanMacM♦ (talk to me) 08:38, 16 November 2017 (UTC)
Fortunately I'm getting my MP to table a last minute amendment to the Hard Breakfast Bill to address image copyright. Martinevans123 (talk) 09:45, 16 November 2017 (UTC)
And WMF has had to deal with UK law before too in National Portrait Gallery and Wikimedia Foundation copyright dispute. --MASEM (t) 14:47, 16 November 2017 (UTC)
The presence on US servers means that the reproduction and distribution originates in the United States, which means that the copyright that must be claimed to infringed in the US is a US copyright. Copyrights are territorial limited, and a UK copyright, for example, has no existence within the US. The US would ordinarily not exercise jurisdiction over infringement of a non-US copyright. And once your context is infringement in the US of a US copyright, very little from outside the US will come into play. An exception might be to determine ownership of a copyright -- there's some precedent for that -- but not to determine whether it meets the requirements to be subject to copyright, which is in the US exclusively a US-law question. TJRC (talk) 21:37, 16 November 2017 (UTC)

Wait..what?

"She also leaves out the key part of the settlement being a desire to delete the original ruling in the case -- or the fact that the court does not appear to have accepted the settlement, and the case is technically still open (she claims that it's all settled)."[19]

So, is the the claim in our article -- "A settlement between Slater, Blurb, and PETA was reached on 11 September 2017" -- false? --Guy Macon (talk) 02:19, 15 November 2017 (UTC)

I see no evidence that the court has accepted the alleged settlement or ruled on [ https://assets.documentcloud.org/documents/4029707/CEI-Amicus-Naruto.pdf ], So I am removing the unsourced claim from the article. --Guy Macon (talk) 10:07, 15 November 2017 (UTC)
I don't think we need to delete the whole statement. Although the parties agreed in the settlement to ask the Ninth Circuit to vacate the lower court ruling, there's no indication that its doing so is a condition to the settlement's taking effect. If that were required, we could say that a settlement has been reached subject to court approval, a request for which is pending. Newyorkbrad (talk) 17:06, 16 November 2017 (UTC)

Monkey selfies and Wiki-ethics

I admit-- I'm one of those people who heard about the copyright dispute on NPR's This American Life last weekend. I trust TAL to tell a fair and balanced story, with proper regard for both sides in a dispute, but I still went and read other sources including this page. I remain disturbed by the logic and the precedent set here-- by Wikimedia and our community, not the courts.

Because something is (arguably) legal does not make it right. Don't we have values as a community, in addition to legal rights? Here we're taking an action-- posting this photo without resolving the dispute with Mr. Slater-- that has a real, tangible, negative effect on a human being. It has no real, tangible effect on the monkey, positive or negative. It has a tangible BENEFIT for Wikipedia, but surely another photo of the crested macaques would deliver the same benefit? (That is, informing and enlightening the page readers.) So what we're left with is a spiteful and legalistic rationale for our actions: you can't technically STOP me from exploiting your work, you can't afford to fight it all the way through the court system, and (worst) your work will be rendered valueless anyway by the fact of my exploitation-- so even if you win, you lose.

I could come up with a dozen parallel situations where the stated legal logic makes no sense:

  1. If I'm an artist and I put a canvas on the ground, and paint my cat's feet different colors, and then position the cat in front of the canvas and watch as it walks across the canvas-- you're telling me that becomes the copyright of the cat… and thus public domain?
  2. If I'm an architect and I tell my computer to render something, based on certain specifications I put in, and it produces a 3-D drawing-- you're telling me that becomes the copyright of my Macbook… and thus public domain?
  3. If I'm a photographer and I set up a camera to take pictures in response to sounds, and I place it in a room of birds, and it takes pictures of the birds in response to their tweets, you're telling me that becomes the copyright of the birds… and thus public domain?

I could go on, but you can see: the logic is absurd. The monkey didn't create the photo; the monkey pushed the button. The artist has a creative intent, and sets conditions by which that intent is expressed in the world. The mere fact of the monkey pushing the button is impossible without the artist purchasing of the camera, delivery of the camera to the location, the lens setting, the film, the battery pack, the socialization, the development, the framing, the promotion. Put another way: Wikimedia would never had access to the photo in question, except through the actions of the artist.

Was there an artist, and did the artist set out to create the conditions to produce a monkey selfie, as a work of art? YES. Is there real and tangible harm to the artist as a result of Wikimedia's actions? YES. Is there real and tangible harm to the monkey? NO. (It has no idea.) Could Wikimedia take reasonable action to avert the harm to the artist and still secure the benefit of a photo? YES.

So what we're left with is a spiteful action by which we're causing harm to someone and their livelihood by cowering behind fine delineations of law. Is it legal? I dunno, maybe. But it's spiteful and petty, and it cuts the knees out from under good people who fuel the information and imagery that power Wikipedia.

(I think this discussion IS relevant to this page topic and to the use of this image on Wikipedia. I'm not going to remove the image myself-- that also wouldn't be consistent with our values-- but please don't shunt this discussion to another page.) Stringbean121 (talk) 14:46, 16 November 2017 (UTC)

@Stringbean121: I agree with a lot of what you've said here, but you've really posted it on the wrong page. This page is for discussing the contents of the Wikipedia article itself, not internal Wikipedia/Wikimedia decision-making regarding use of the photograph(s). That being said, if you're curious, my own essay on this subject can be found here. Regards, Newyorkbrad (talk) 17:02, 16 November 2017 (UTC)
Key to keep in mind is what's done is done. Some editor at commons made a claim the image could not qualify for copyright, the situation got wide notarity, and then the Copyright Office revised its language to specifically note the case. If I were that original editor I probably would have erred on treating them as non-free until we got more details from the Copyright office, which would have avoided everything since, but that is not what happened. We can't "take back" that, particularly since the organization that would have to legal defend WP if there was a suit, the WMF, has agreed with the stance it was non-copyrightable. --MASEM (t) 18:03, 16 November 2017 (UTC)
The US copyright office ruled that a picture created entirely by a monkey isn't eligible for copyright, but in this case, where the photographer set up the camera, adjusted all the settings, and claims to have been holding the tripod, it has not ruled that this particular picture counts as being created by a monkey. --Ahecht (TALK
PAGE) 19:24, 16 November 2017 (UTC)
Yes, except it wasn't really created by the monkey, was it? Surely "a picture created entirely by a monkey" is not possible. How would it know how to retrieve it from the camera? A digital file that resides in the memory of a camera is not "a picture", is it? Martinevans123 (talk) 19:29, 16 November 2017 (UTC)
Exactly, and no court has actually ruled on that issue, there is just one (potentially soon-to-be-vacated) ruling that a monkey is incapable of holding copyright and a pamphlet indicating that artistic works created by animals cannot register for copyright in the US. Nothing specific to this photo other than a decision by WMF legal. --Ahecht (TALK
PAGE) 19:34, 16 November 2017 (UTC)
Whether something is a "picture" is not a meaningful question of copyright law. For what it's worth, the threshold question on whether a work meets the physical requirement for copyright eligibility in the US is whether it is "fixed in any tangible medium of expression, now known or later developed, from which [it] can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." 17 U.S.C. § 102(a). Whether the monkey retrieved it from the camera, was capable of retrieving it from the camera, or whether someone else retrieved it from the camera is a red herring, and completely irrelevant. TJRC (talk) 21:27, 16 November 2017 (UTC)
I see. So when exactly does the "act of creation" end? Martinevans123 (talk) 21:58, 16 November 2017 (UTC)
The "act of creation" ended when the monkey triggered the shutter release. When looking at any additional processing, normal actions that anyone who has photography skills can do (adjusting the color balance, cropping, removing the memory card and uploading the image to a computer) is not an "act of creation". Some kinds of image manipulation require creativity, and thus are generally considered part of the "act of creation". --Guy Macon (talk) 13:03, 18 November 2017 (UTC)
So no intentionality, or even understanding, is required. And what about all that lugging of a camera to Indonesia, taking off the lens cap, and so on? Isn't this "act of creation" at least some kind of joint enterprise? Perhaps the monkey was secretly hoping to cash in on the controversy and so deliberately kept a low profile? Martinevans123 (talk) 18:37, 18 November 2017 (UTC)
If the above argument is valid, then Canon owns the copyright. They did a lot more work creating the camera than Slater did lugging it to Indonesia. --Guy Macon (talk) 08:26, 19 November 2017 (UTC)
Except that cameras don't move themselves around, point themselves at something interesting and release their own shutter. And I'm pretty sure cameras aren't awarded copyright on the pictures taken on them, very often. But you never know. I mean most people, I think, would see that Slater did most of the work? Ok, maybe if the monkey had run off and taken a picture of a nearby waterfall, that would have been a true "artistic creation". I guess the macaque could recognise itself in the lens (possibly?), but it was only looking into it and reacting to the mirrored image? It had (and still has), no idea that it was capturing an image of itself or "creating" anything at all. I'd suggest that an elephant creating a mural would be far more self-aware it had created something. Martinevans123 (talk) 09:43, 19 November 2017 (UTC)

Background section

Per: this content - 4 July 2011 Telegraph is a mix of out of context Slater quotes and the writers comments. Claim that a specific male stealing the camera made the selfi is not stated there by Slater. I inserted more material, we need to use secondary sources describing this media coverage, we can not compare and contrast historical contemporaneous media reports to throw aspersions at Slater's veracity, that is specifically WP:OR, and note the contemporaneous Daily mail article cited contradicts The Telegraph - saying (the selfie) was shot by a female "known for their intelligence and dexterity"..... "Fascinated by her reflection in the lens". He describes the males actions in that article as well showing the selfi incident and the "male stealing the camera" incident are two different events. Fountains of Bryn Mawr (talk) 18:49, 17 November 2017 (UTC)

A difficulty is that everything that happened with the photos is going to be based on what Slater is quoted to have said. And that likely means there is going to be a pre-Commons upload version, a post-Commons Upload/pre-WMF response version, a post-WFM/pre-PETA version, and a post-PETA version, and possibly more. And because we're "involved" we should be extremely careful here.
I absolutely agree above we cannot try to take the statements from these different periods to try to compare and contrast. That is 100% OR, and in this very specific case, an unethical practice. My suggestion is that the background should only use Slater's comments pre-Commons Upload, and then use the appropriate versions in the other sections (in where he argued his creative involvement), without trying to apply logic like "he changed his story", barring reliable, secondary sources making that stance. --MASEM (t) 18:56, 17 November 2017 (UTC)
Agree, I also noticed that the accounts that are claimed to have varied, Daily Mail, Telegraph, Amateur Photographer, are "pre-copywrite conflict" news articles and therefor not Slater CYA (he didn't have a dispute yet). Also noticed Telegraph is not the first account as claimed, Daily Mail by-line predates it. Need to get these accounts in chronological order with noted variances and maybe some more up to date RS about a veracity dispute, if there is one. Fountains of Bryn Mawr (talk) 19:12, 17 November 2017 (UTC)
It would be extremely helpful if there was an RS that stated, in their secondary nature "Slater's accounts of the incident have changed over the timeframe of the copyright dispute." when then sets up a means to have a section to try to document the history (without our interpretation of what changed) of Slater's statements in the background. Everything as of early July 2011, pre the copyrigh dispute, however should be presented as is. --MASEM (t) 19:16, 17 November 2017 (UTC)
We do have such a source. "[Slater] has since changed his story to make it appear that he had more of a role in the photo, but that was not his original story at all".[20] --Guy Macon (talk) 04:02, 18 November 2017 (UTC)
I have asked for more input here: Wikipedia:Neutral point of view/Noticeboard#Monkey selfie copyright dispute. --Guy Macon (talk) 04:02, 18 November 2017 (UTC)
As Techdirt is involved in the story, I wouldn't consider them "independent" here. We'd need a different source. --MASEM (t) 04:57, 18 November 2017 (UTC)
If you are going to use Techdirt you need to attribute it, but I am iffy about using a source that uses the Daily Myth as a source and I note it is the DM saying he left it unattended, not Slater).Slatersteven (talk) 12:03, 19 November 2017 (UTC)
We are not to use The Daily Mail as a source, even for direct quotes. Anything that The Daily Mail says must be assumed to be a lie, and any direct quote published by The Daily Mail must be assumed to be fabricated. This includes using an article in The Daily Mail as a reason to word a Wikipedia article in a certain way, even if no Daily Mail citation is used. See WP:DAILYMAIL to see why this decision was made.
The source for "the crested black macaque hijacked the camera and started snapping away" is The Telegraph. No reason other than "The Daily Mail says something else" has been put forth for removing this sourced statement. Slater saying that "He must have taken hundreds of pictures by the time I got my camera back" is a direct quote sourced in The Telegraph. No reason other than "The Daily Mail says something else" has been put forth for removing this sourced direct quote. --Guy Macon (talk) 14:06, 19 November 2017 (UTC)
"We are not to use The Daily Mail as a source, even for direct quotes. "
I don't know where you get that from. Certainly not WP:DAILYMAIL. Andy Dingley (talk) 14:33, 19 November 2017 (UTC)
There is zero problem in using a cited DM article that is known to have caused an effect (here the popularity of the monkey selfie) as long as other sources point that fact out. We're not using any material from DM, just a pointer for researchers to know specifically which article. That's completely fine under the DM "ban". --MASEM (t) 14:51, 19 November 2017 (UTC)
Re: "We are not to use The Daily Mail as a source, even for direct quotes", what part of Consensus has determined that the Daily Mail (including its online version, dailymail.co.uk) is generally unreliable, and its use as a reference is to be generally prohibited, especially when other more reliable sources exist. As a result, the Daily Mail should not be used for determining notability, nor should it be used as a source in articles. are you having trouble understanding?
Here is an example, from Daily Mail censured for fictional story about Amanda Knox verdict in The Guardian:
  • "The Mail's website reported that Knox has lost her appeal against her conviction for murdering Meredith Kercher when, in fact, she had been successful. [...] These included quotes attributed to the prosecutors apparently reacting to the guilty verdict, and the description of the reaction in the courtroom to the news, stating that Knox 'sank into her chair sobbing uncontrollably while her family and friends hugged each other in tears'. It further stated that the family of Meredith Kercher 'remained expressionless, staring straight ahead, glancing over just once at the distraught Knox family'. The newspaper apologised for the mistake. It said that it was standard practice in such high-profile cases for two alternative stories (plus supporting quotes) to be prepared in advance"
So we now know that it is standard practice for The Daily Mail to fabricate direct quotes. Add that to the many examples of photoshopped images and the conclusion is inescapable; we cannot trust anything written in The Daily Mail.
Also, Fountains of Bryn Mawr is not "using a cited DM article that is known to have caused an effect". He is using it as a source to justify deleting material from The Telegraph. Here is where he makes that argument:[21] --Guy Macon (talk) 15:51, 19 November 2017 (UTC)

You really can't have your sources and cherry pick them to. A secondary source says the original news outlets involved were "The Daily Mirror, The Sun and The Daily Mail"[22]. techdirt.com (a source you want to use) gives their "source" showing that Slater "changed his story" as---> the Daily Mail. So the The Daily Mirror, The Sun, The Daily Mail, and The Telegraph[23] all need to be cited/quoted as the origins of the story, that's what other sources tell us. We are not citing them for their reliability, we are citing them as the elements in a historical event (without interpreting them). Fountains of Bryn Mawr (talk) 20:52, 19 November 2017 (UTC)

There is one point to be aware of with the Daily Mail that Guy's getting at: we should not use any quotes from it for anything said by Slater. (Which when I last read, we aren't.) --MASEM (t) 22:10, 19 November 2017 (UTC)
No but we should not use (to my min d) a source that quotes them either, at least not without attribution. Slatersteven (talk) 11:18, 20 November 2017 (UTC)

Can we make this a featured article?

Who will help me make this a featured article? I can't lie, it cheered me up on a 'down' night...many people should read this article and enjoy the slightly irreverent nature of the whole debacle (Sorry PETA/Jimbo if you're taking it seriously!) AMightierHeart (talk) 02:43, 19 November 2017 (UTC)

Well Slater seems to be taking it seriously, as he claims it's ruined him. But then he's only a lowly wildlife photographer, not a Wikipedia editor? Or was. Martinevans123 (talk) 12:23, 19 November 2017 (UTC)
Can we not soapbox, and this is about the worst rational I have ever seen for a FA request.12:54, 19 November 2017 (UTC)
Something suggested that Slater was quite an integral part of this story. I don't feel personally responsible for ruining his career. Do you think FA nomination would be just gloating? Martinevans123 (talk) 13:03, 19 November 2017 (UTC)
I have no idea, but "being funny" is not a rational to my mind for FA.Slatersteven (talk) 13:07, 19 November 2017 (UTC)

So long as the article is balanced and provides the arguments for and against, I don't think it can realistically be considered gloating; it's really just the absurdity of the idea of a legal debate over whether or not a monkey can own a copyright (How exactly does one purchase rights from him? If he accepts the outstretched banana, is that indicative of consent? Does he need a legal team appointed to defend the monkey's interests?) AMightierHeart (talk) 13:11, 19 November 2017 (UTC)

Historians may find it remarkable that in this document from a US court, a celebes crested macaque is named as the plaintiff in a court action and it isn't April 1. It's surprising that a US court allowed this, albeit "by and through his Next Friends", ie PETA. The article could use some clarification of why this was allowed. If a monkey can't hold a copyright in the USA, why can it be the plaintiff in a lawsuit in California?--♦IanMacM♦ (talk to me) 13:58, 19 November 2017 (UTC)
I guess things are different in Hollywood? Martinevans123 (talk) 17:31, 19 November 2017 (UTC)
Well obviously the big issue that isn't being addressed yet is whether Slater has the right to face and challenge his accuser in court, and if so, will California issue a Summons to Appear to the monkey? :D AMightierHeart (talk) 03:27, 20 November 2017 (UTC)
I was under the impression that in California if you want to file a "by and through his Next Friends" lawsuit you had to hire a process server and serve papers to your "Friend". Are there exceptions for the handicapped (I am thinking of recent lawsuits filed in behalf of someone in a coma or in behalf of a frozen embryo)? If so, who decided that the Plaintiff doesn't need to be notified? I would not be happy if someone decided they are "Attorneys for Plaintiff" and filed a lawsuit on my behalf without my permission. --Guy Macon (talk) 19:26, 20 November 2017 (UTC)
Don't give me that "forgot to tell me" legal monkey business. Martinevans123 (talk) 19:56, 20 November 2017 (UTC) N.B. the copyright of this image is held by leading wildlife photographer Steve Bloom, but is clearly attributed.
I'm not sure whether California has that rule, but if so, it would not be applicable here. This suit was filed in the U.S. District Court for the Northern District of California; which is a federal court located in California, not a California court. Federal rules, not California rules, apply. TJRC (talk) 00:04, 1 December 2017 (UTC)
I'm not sure what you mean by "allowed" - the suit was dismissed. Alanscottwalker (talk) 21:04, 30 November 2017 (UTC)
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