Copyright Rulemakers, Heal Thy Selfie

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(Self-portrait by Greg Richter -- and don't dare steal his copyright to it.)
(Self-portrait by Greg Richter -- and don't dare steal his copyright to it.)
(Self-portrait by Greg Richter — and don’t dare steal his copyright to it.)

There’s a glaring inconsistency on who owns a selfie – especially if you weren’t wearing clothes when you took it.

You might not think this is a big deal. But if you are an artist who produces copyrighted material, or just care about private property rights, you should be alarmed.

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Copyright law is fairly clear: If you produce a work, you own it. That means if you take a photograph on your own camera, the copyright is yours.

There are exceptions. If you are doing a work-for-hire, that is, someone has hired you to take photographs with the understanding they will own the images, then you don’t own them.

But, generally speaking, professional photographers, and regular people with cell phone cameras, own the copyright to the images they produce.

That rule seemed pretty clear last week when nude photos of more than 100 celebrities were hacked from cell phones and posted online. Some of the celebrities, including actress Jennifer Lawrence, threatened legal action.

No one challenged her right to do so. After all, she owned the photos.

What about the photos former New York Rep. Anthony Weiner texted to Sydney Leathers? Leathers allowed the website TheDirty.com to publish the photos Weiner sent her even though they were not legally hers to share.

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Though Weiner sent her copies of the photos, that didn’t grant Leather a copyright to them. Interestingly, many news organizations that published them gave credit to The Dirty. Leathers might have obtained money for the photos, but since she didn’t own the copyright she couldn’t sell it to that website.

You would think news organizations, which are protective of their own copyrights, would have recognized this. But everyone’s been driving with a suspended creative license lately.

You own your face
For that matter, if you take a selfie, not only do you own the copyright, you own the rights to your own image. That’s true even if someone else takes your picture. You have to sign a release for him or her to use a picture of you commercially even though the photographer owns the copyright to the photo itself.

Obviously, Weiner was in no mood to sue. He wanted the scandal to go away so he could pursue his – ahem – naked ambition of becoming mayor of New York.

I don’t feel sorry for Weiner, considering the circumstances of how his photos came to be made public. But the fact that someone else could just claim his copyright and make money off his pictures and no one disputed it is troubling.

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The famous photo of the Sulwasei crested black macaque that has photographer David J. Slater battling for his copyright. (Used by permission of David J. Slater)
The famous photo of the Sulwasei crested black macaque that has photographer David J. Slater battling for his copyright. (Used by permission of David J. Slater)

A far different case is that of David J. Slater, the wildlife photographer who set up his camera and had a monkey snap a selfie. Slater is involved in a legal dispute with Wikimedia Commons, which claims the monkey selfie is not Slater’s intellectual property because the photographer himself did not take the picture.

According to Wikimedia Commons, the photo is in the public domain since it was taken by an animal, and animals can’t own copyrights.

(I obtained proper permission from Slater to reproduce the photo on this site since I do not believe it should be in the public domain. You can get your own free canvass print of the photo by visiting Slater’s website, and Picanova will donate £1, or $1.70 U.S., to Save the Sulawesi Crested Black Macaques.)

The U.S. Copyright Compendium recently listed types of works produced by nature, animals or plants, which it believes cannot be copyrighted. It includes “A photograph taken by a monkey.”

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That would certainly make sense if a monkey stumbled upon an abandoned camera and took a picture. But that isn’t what Slater says happened.

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In 2011, he was on the Indonesian island of Sulawesi to photograph the endangered macaques when he noticed their interest in his equipment. Some of the monkeys had run off with his equipment earlier and taken what he describes as a “rubbish picture,” so he set up a camera on a tripod to try to capture a good shot. He crouched and held one of the tripod legs while some of the monkeys played with the camera. Eventually, one of them touched the trigger, as it had seen him do, and the monkey selfie was captured.

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Slater argues that the captured images were set up by him on purpose, much like a photographer might set up a shot and have a tripwire take an exposure when an animal passes or a filmmaker might set up a camera to grab a time-lapse shot and walk away while the images are made.

Such images are protected by copyright. The lack of copyright on natural phenomenon is intended to apply only to such things as leopard prints, zebra stripes or wood grain patterns.

Is this accidental shot of the floor, made while trying to turn off the camera, public domain. (Photo by Greg Richter, albeit accidentally.)
Is this accidental shot of the floor, made while trying to turn off the camera, public domain? (Photo by Greg Richter, albeit accidentally.)

The Copyright Compendium doesn’t agree with Slater’s argument and says he didn’t plan his photograph so it isn’t his. Does that mean when I’ve accidentally hit the shutter and taken a picture of the ground it isn’t mine because I didn’t take it on purpose?

Admittedly, I’ve never taken an accidental shot that anybody would want to buy, but I’m sure someone has. In fact, I once obtained photos of a tornado shot by an amateur so that the newspaper I worked for could run them. The Associated Press picked up the photos and our chief of photography made sure the man got paid royalties.

But the tornado photographer told me that once the twister was virtually on top of him (It hit one block from the parking deck where he was shooting) he ducked, stuck the camera over his head and fired off shots blindly.

That sounds like the Copyright Compendium would say those aren’t his pictures.

Or what about the time-lapse shot set up by Greenpeace recently that was interrupted by a curious marmot? The rules sound like they say Greenpeace owns the movie up until the point the marmot bumped the camera and changed the angle. After that it’s public domain, right?

I don’t think the courts or the Copyright Compendium would make that argument. But then, I wouldn’t have thought they would monkey with Slater’s right to his own pictures.

A 2011 story on the monkey selfie in the Daily Mail put Slater’s quotes out of order, he said. It made it seem as though the monkey in the picture stole his camera and took the photo, giving a “godsend to those that wish to steal intellectual property.”

The National Press Photographers Association has weighed in, noting that the Copyright Compendium’s rules are not legally binding on the U.S. Copyright Office or the Register of Copyrights, though they do tend to influence them. The NPPA is urging people to leave a comment on the Compendium by December 15, 2014, when the draft form will be made permanent.

Slater wants people in their comments to ask why is “taking” a photo the same as “making” or “creating” one.

“Are we all supposed to have camera phones or other point and press gadgets?” he told me in an email. “This is not photography at all, unless your small world revolves around social media!”

Selfies as used in social media are not the same as his work as a professional photographer, he said.

Cell phone selfies are ” a conscious act of pressing a button to make a photo for posting on a social media site for fun,” he said. “My photos are NOT selfies at all. They were arranged by a human author who pointed a camera at a monkey and encouraged it to press a button — for conservation reasons (as well a bit of fun of course!).”