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Last post Author Topic: Wikimedia refuses to remove animal selfie because monkey ‘owns’ the photo  (Read 9461 times)

Renegade

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This is interesting for the whole IP/copyright blabbering.

http://myfox8.com/20...-owns-the-copyright/

Quote
Wikimedia has denied a photographer’s request to remove a “monkey selfie” photo because the monkey pressed the shutter button making the photo ineligible for copyright, according to the Telegraph.

Nature photographer David Slater was in Indonesia in 2011 when a crested black macaque stole his camera and took hundreds of photos, including the famous selfie that was featured in publications across the world.

Many of the photos were blurry shots of the jungle floor, but among the throwaways were the selfie that gave Slater worldwide attention.



More at the link.

I'm tempted to type some bad puns...
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Tuxman

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Monkey see, monkey do?

After all, Wikipedia now ignores the monkey's copyright by just declaring the photo "Public Domain" without her consent. The monkey should sue them.

Stoic Joker

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Great, now the new poster child for IP law really is a monkey with a loaded weapon.

40hz

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Awesome!

Good article over at TechDirt about how the Wikimedia Foundation has a record of not rolling over any time a bogus takedown notice is received. Read the full article here.

Quote
Kudos To Wikimedia Foundation For Resisting All Government Requests To Censor Content
from the good-to-see dept


Wikimedia's new Transparency Report has been getting some attention, in part because it brought attention back to the whole monkey selfie copyright debacle. However, the rest of the transparency report itself is rather interesting, starting with the fact that it appears that Wikimedia rejected every request to pull down information (unrelated to copyright, which we'll get to in a second).

Renegade

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The whole thing seems to just show how cracked & broken copyright is.

Someone else brought up this case...

You're out at a typical tourist destination when a couple hands you their camera and asks you to take a picture of them up against a background. You say yes, then snap a nice picture of them.

You own the copyright? On their camera?

So, if I can extend that a bit...

But of course! Because, Wikipedia and monkeys! Therefore you say to the couple that they can purchase your intellectual property (copyright) interests in the photo for the paultry sum of $25.00, as you firmly grip the camera and put it behind your back. After all... that's YOUR photo...



Now, I'm not saying yes or no there, but it brings up an interesting question --- who "owns" the photo?

  • Would you please snap a picture **of** us?
  • Would you please snap a picture **for** us?

Would the way the couple actually asked the question matter? Above, "of" and "for" are very different. i.e. I can snap a picture "of" you but not "for" you. It could be for someone else, like your mother or me or a trashy magazine/newspaper.

Slow Down Music - Where I commit thought crimes...

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40hz

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^Just hand them a dollar for doing it. Then you have offer, tender, and acceptance and it becomes "work for hire."

And yeah, this stuff is utter nonsense and really needs to be fixed. I've already seen a few new sysadmin hires who wanted to talk about arranging licensing for the entry-level shell script they just wrote - for the client who is paying their wages  - because ad hoc administrative scripting wasn't specifically mentioned in their job description.

I wonder just what blog or irc channel they got that idea from? :-\

And here I thought I was a BOFH... :tellme:

Stoic Joker

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And yeah, this stuff is utter nonsense and really needs to be fixed. I've already seen a few new sysadmin hires who wanted to talk about arranging licensing for the entry-level shell script they just wrote - for the client who is paying their wages  - because ad hoc administrative scripting wasn't specifically mentioned in their job description.

I wonder just what blog or irc channel they got that idea from? :-\

And here I thought I was a BOFH...

Oh don't worry, we still are ... That bar isn't to be trifled with....ever. This new breed of self entitled sniveling millennials is just the type that gets sent down an elevator shaft riding a custom high output cattle prod.

I don't know what ring of hell produces people stupid enough to think that they can administer anything from GUI land ... But if they started whinging about doing a little script coding (and yes wanting a license qualifies) in the first 90 days... I'll happily kick them through the door myself.

TaoPhoenix

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Getting back to the original topic, the photo was apparently "rotated and cropped" but basically came out great. I just saved a copy to my local (backup) computer, to remind myself to re-save it again later whe my main machine is back up.

But there's a fantastic op here: just train animals to take pics semi-well! A whole cadre of them! Buy them their own cameras! Get a few snickering lawyers to get the procedures right!

The inevitable judge who gets one of those cases on his docket is gonna roll over laughing!
"Murder one, petty theft, Australian Platypus taking pictures copyright dispute .... uh ... what?!!"

Then you can make forums/blogs of who can be the first to get X species taking pics... then they make a new branch of the SPCA (Society for Purchasing Cameras for Animals)  ... oh my word, I needed a good laugh!!

 ;D  :D


app103

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You're out at a typical tourist destination when a couple hands you their camera and asks you to take a picture of them up against a background. You say yes, then snap a nice picture of them.

You own the copyright? On their camera?

I borrow my daughter's camera and take a few amazing photos with it. I own the copyright? On her camera? Or does she?

- I do.

What if she borrows my camera and takes pictures with it? She owns the copyright? On my camera?

- Yes, she does.

If you write poetry in a text editor installed on a computer at the library, do you own the copyright? Or does the library, who owns the computer you used to do it?

- You do, of course.

If you walk into a music store, pick up a display guitar and compose a piece of original music, right there, in the store...do you own the copyright? Or does the store, who still owns the guitar?

- You do, of course!

Being the owner of a piece of equipment does not automatically entitle one to all of the copyrights for everything produced with it, by anyone or anything.

That would be like saying that the owner of a paintbrush automatically owns the copyrights to all of the paintings made with it, without ever having to use that paintbrush themselves, without having to have any skill or talent, or any investment of time, work, and creativity.

Merely shopping for art supplies at a A.C. Moore can not net you a ton of copyrights, for works you never created.

Copyrights are granted to the creator of a work, not the owner of the equipment used to create the work.



But in the case of the monkey, who is the actual photographer/creator, that monkey would have been the copyright holder, except for 2 things.

1. Copyrights can only be held by humans.
2. Copyrights for things created by a trained animal may be held by the animal's owner/trainer, but in this case it is an untrained, wild animal... without an owner.

So, who owns the copyright on the works of art created by this elephant?



This elephant is painting what it was trained to paint. It didn't make the decision to paint, or decide what to paint, nor did it decide how to do it or what colors to use. The trainer did. The trainer is the real creator of the artwork and is merely using the elephant as a tool to do it. It would be pretty much the same as taping a brush to a remote controlled toy helicopter and using it to make a painting. You wouldn't give the credit or copyright to the helicopter.

Now, if the trainer is the owner of the elephant, then they would hold the copyright on that elephant's paintings. But if the trainer works for a zoo or other similar organization and was hired to train the elephant, then most likely the copyright would be held by his employer, and it would be considered works for hire.

Now, on the subject of works for hire...

^Just hand them a dollar for doing it. Then you have offer, tender, and acceptance and it becomes "work for hire."

Merely paying someone to take pics of/for you doesn't automatically make it a work for hire and you as the copyright holder.

Most professional portrait photographers that own their own studio retain the copyright on the photos they create, even though they are being paid to do it. As a commissioned artist, it is usually not treated as a work for hire.

But if they hire a photographer to take the photos on behalf of their business, then they hold the copyright on any photos produced by their employees...those are treated as works for hire.

And if I sign a contract to take photos for someone and the contract states that I agree to assign that person or company all copyrights for any photos I take for them, in exchange for a set amount to be paid by them for those photos, then the person or company gets the copyright, as works for hire.

So, in addition to giving them a dollar to take the photo for you, you would likely have to also get them to sign a contract where they agree to relinquish copyright to you, as a work for hire.  ;)

Renegade

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@app103 - So what about the tourist case? How would any fallout be handled? Random strangers owning pictures on your camera? This still seems odd. The case isn't the same as your daughter borrowing your camera.
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app103

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@app103 - So what about the tourist case? How would any fallout be handled? Random strangers owning pictures on your camera? This still seems odd. The case isn't the same as your daughter borrowing your camera.

So, in addition to giving them a dollar to take the photo for you, you would likely have to also get them to sign a contract where they agree to relinquish copyright to you, as a work for hire.  ;)

Renegade

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@app103 - So what about the tourist case? How would any fallout be handled? Random strangers owning pictures on your camera? This still seems odd. The case isn't the same as your daughter borrowing your camera.

So, in addition to giving them a dollar to take the photo for you, you would likely have to also get them to sign a contract where they agree to relinquish copyright to you, as a work for hire.  ;)

That merely dodges the issue.

I would argue that there's a reasonable expectation that the subjects of the photo own the photo, and that the photographer is merely being asked for an act of charity.
Slow Down Music - Where I commit thought crimes...

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app103

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@app103 - So what about the tourist case? How would any fallout be handled? Random strangers owning pictures on your camera? This still seems odd. The case isn't the same as your daughter borrowing your camera.

So, in addition to giving them a dollar to take the photo for you, you would likely have to also get them to sign a contract where they agree to relinquish copyright to you, as a work for hire.  ;)

That merely dodges the issue.

I would argue that there's a reasonable expectation that the subjects of the photo own the photo, and that the photographer is merely being asked for an act of charity.


There is also a reasonable expectation that the subjects will use that photo for personal use only, and won't sell the photo to Time magazine.

But if that could end up being their intention, the photographer might have a leg to stand on in court, in the absence of a contract.

And if you think that the photo having a real market value seems far fetched, consider what kinds of things could accidentally be captured in the background of such a photo. What if some tourists to NYC had some random stranger take their picture on 9/11, and in the background you could clearly see a plane hitting the WTC. A photo like that could have had a market value.

Or what if in 3-5 years, one of the subjects became a famous celebrity? Or the photographer did? Or it ends up being a celebrity photobombing?
« Last Edit: August 08, 2014, 01:19:41 PM by app103 »

J-Mac

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App,

While this topic was fairly interesting on its own, you have made it infinitely more so! Thought provoking. (And now I am trying hard to remember if I have ever taken any photos of anyone who has since become famous!  :P  )

Jim

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Maybe I'm a bit off base here, but it seems to me that asking a random stranger to take a picture of you and your friend/family/pet/whatever at any given location/event in lieu of the ubiquitous "selfie" is subject to something we used to call a "gentleman's agreement".  Nobody in these situations even entertains the thought of whose copyright the damn thing is, because usually it's just a snapshot intended for your home photo album with a few copies for grandma and auntie, and if either party demanded any rights or recompense, you'd get anything from a blank stare to a poke in the nose; it just isn't civil.  Besides, if you had intended it as a photograph you eventually make money off of, what the blue-sparking hell are you doing trusting it to a random stranger?  And if it DID become famous, how the hell would you know who the stranger was, and how would they know they were the ones that took that picture?  Involving lawyers in something like that would just be bad form, bad taste, bad everything.

RE: the monkey.

I think it's a bit of  a stretch to say the monkey is the copyright holder, as April pointed out, "Copyrights can only be held by humans", and I'm pretty sure the monkey had no idea what it was doing.  Dickering over whose finger operating the shutter determining the copyright is just chatter and hand-waving IMO.  What are you gonna do?  Pay it royalties in bananas?
pointless theoretical legal quicksand
What if a photographer had his camera stolen, and the thief took a marketable photo, was apprehended by authorities, and the camera returned to it's owner?  Does he own copyright to the photo?  Can he sue for royalties if the owner of the camera capitalizes on it?  I don't think so.  IANAL, but I seem to recall precedent that says the thief surrenders his rights to property because he did so under unlawful circumstances.  e.g. a car thief could not demand recompense for the gas he purchased to fill up the tank of a vehicle he stole.  The photographer did say the monkey "stole" his camera, but then again, monkeys are not beholden to human law, so more of blah blah blah, ad nauseum :-\

That said, the owner of the camera probably should have done what professional photographers really do, which is properly copyright and watermark the thing before allowing it to spread like influenza over the internet.  A bit like closing the barn door after the cows have gotten out.  >:(
If he did, and Wikimedia simply rolled with the semantics, then I'm on the photographer's side; if not, Wikimedia has my vote.

Stoic Joker

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Or what if in 3-5 years, one of the subjects became a famous celebrity? Or the photographer did?

So what, It doesn't retroactively make everything they ever touched gold. And trying to have a legal strategy in place for every possible outcome, of every possible situation is just foolish. People should just work things out on their own instead of constantly running crying to (the legal system) mommy to sort out their messes.

There are frequent stories of lottery winners that have gone back and given the clerk that sold them the winning ticket a nice pile of cash...because they felt it was the right thing to do. Others - probably most - didn't. But trying to get a "tip" requirement enforced by the legal system would be foolish. Just as foolish as the fighting over the rights to a picture snapped for a stranger.

What if someone's camera was stolen, and the thief took some incredible photos that were worth a fortune before getting busted. Then cops return the camera - yeah I know far fetched...but just work with me - to the rightful owner. Does the thief then deserve a piece of the action??

As a rule...I would say no. Because there is no reason the court should be wasting its time on that sort of crap. However as an individual...depending on the circumstances...there is a possibility I may be inclined to toss them a piece of the action.

Stoic Joker

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@Edward - I was typing my post when yours came in (so hadn't seen it), but it looks like we went to the same place with this. :Thmbsup:

40hz

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It's all kind of silly. I doubt any court will extend IP legal protections to a non-human at this stage of the game.

And the fact the photographer didn't himself take the shot rules out his claiming copyright as the photographer.

However, because he owned the means (i.e. the camera that took the shot) and in the absence of any other human claiming to have been the photographer, he probably has the best claim to legal ownership of the picture.

Now perhaps the ape could file suit...but he'd need representation since (again as a non-human) he couldn't file on his own behalf - and it would be interesting to see how they could establish that he gave his informed consent for an attorney to represent him...hmmm

I suppose a judge could make him a ward of the state and appoint legal counsel on his behalf. But that would be such a career limiting move that I don't think many US judges (and certainly not any residing outside the State of California) would even consider doing such a thing.

Then there's the thorny question of jurisdiction in that this ape is a resident of Indonesia, and the photo was taken in Indonesia so it's questionable which courts would have jurisdiction. (I'm guessing it wouldn't be the United States in any event.)

Hmm...now should Indonesia decide to make this monkey a ward of the state...and file on his behalf under the international law (good) or international trade agreement (even better) there might be some kerfuffle over who was legally entitled to whatever money could be made...

Yup...it's insane.

Copyright and related IP law needs to be reformed. Pronto. :tellme:

Renegade

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There is also a reasonable expectation that the subjects will use that photo for personal use only, and won't sell the photo to Time magazine.

But if that could end up being their intention, the photographer might have a leg to stand on in court, in the absence of a contract.

And if you think that the photo having a real market value seems far fetched, consider what kinds of things could accidentally be captured in the background of such a photo. What if some tourists to NYC had some random stranger take their picture on 9/11, and in the background you could clearly see a plane hitting the WTC. A photo like that could have had a market value.

Or what if in 3-5 years, one of the subjects became a famous celebrity? Or the photographer did? Or it ends up being a celebrity photobombing?

Argument about work involved

The tourists:

Choose the location
Choose the time
Set up (frame) the picture

The "photographer":

Clicks the shutter button

As far as the work involved in the actual photograph, the subjects of it have invested far more than the person who takes the picture.

Argument about no human agent

Now, let's say that they have a tripod and set up the camera on that, then set the timer.

There is no photographer anymore. Somebody set a timer, but nobody clicked the shutter button.

The camera isn't human, so therefore the picture is in the public domain.

What if some tourists to NYC had some random stranger take their picture on 9/11, and in the background you could clearly see a plane hitting the WTC. A photo like that could have had a market value.

This is a great point, and one that I was hoping someone would bring up.

Argument about permission to use property

The tourists have only given permission to the "photographer" to take pictures of them, and not permission to run around taking all sorts of pictures of other things.

So now you have a conflict involving the (mis-)use of the tourist's property versus the interests of the photographer.

Imagine you get someone to mow your lawn (for pay or otherwise), and they proceed to build a nice shed in your backyard out of materials you have, then demand to use it for their own purposes. Well... err...

Who owns the shed?

I think you have a much stronger claim on the shed than the person that built it.

The same applies to the tourist's camera.

Argument about duty/responsibility to preserve property

*IF* the photographer that takes a picture of some tourists has IP ownership in the photo, then the tourists would be guilty of destroying the photographer's property if they deleted or lost the photographs.

This is pretty absurd as it puts an onerous burden on the owner of the camera.

Back to the photobombing event example, imagine that the picture ends up with rockets exploding and people being blown apart in the background - blood, death, gore and nastiness (or imagine that the rocket is visible before it impacts/explodes). A war has just started. Now the owner of the camera may be your stereotypical little old lady with fragile sensibilities, and rather than have that "horrible" picture on her camera, she decides to delete it.

If the photographer owns the picture, then she has destroyed his property.

Argument for camera traps

Naturalists often set up cameras with motion detectors to take pictures of wildlife as they pass. No human is involved in actuall taking the picture.

What then?

Argument for public disclosure of all surveillance video

Surveillance cameras are automated with no human interaction. Is all that video then in the public domain?

The road that Wikimedia has chosen is fraught with issues.


Maybe I'm a bit off base here, but it seems to me that asking a random stranger to take a picture of you and your friend/family/pet/whatever at any given location/event in lieu of the ubiquitous "selfie" is subject to something we used to call a "gentleman's agreement".  Nobody in these situations even entertains the thought of whose copyright the damn thing is, because usually it's just a snapshot intended for your home photo album with a few copies for grandma and auntie, and if either party demanded any rights or recompense, you'd get anything from a blank stare to a poke in the nose; it just isn't civil

Yep. That.

Quote
What if a photographer had his camera stolen, and the thief took a marketable photo, was apprehended by authorities, and the camera returned to it's owner?  Does he own copyright to the photo?  Can he sue for royalties if the owner of the camera capitalizes on it?  I don't think so.  IANAL, but I seem to recall precedent that says the thief surrenders his rights to property because he did so under unlawful circumstances.  e.g. a car thief could not demand recompense for the gas he purchased to fill up the tank of a vehicle he stole.  The photographer did say the monkey "stole" his camera, but then again, monkeys are not beholden to human law, so more of blah blah blah, ad nauseum undecided


Yep. And that.


What if someone's camera was stolen, and the thief took some incredible photos that were worth a fortune before getting busted. Then cops return the camera - yeah I know far fetched...but just work with me - to the rightful owner. Does the thief then deserve a piece of the action??

And again.

The point that the camera is stolen goes back to the camera being the rightful property of its owner. Anything done to/with the camera is something that the owner must deal with.

Extending the shed example I gave above, imagine that someone comes into your backyard completely without your permission (no invitation at all) and builds a shed with materials you have.

Does that person have any kind of a claim on the shed?


It's all kind of silly. I doubt any court will extend IP legal protections to a non-human at this stage of the game.

It doesn't make any sense to extend IP to non-human agents. (I've tried to make that point above regarding surveillance cameras, camera traps, etc.)

The question then gets around to how in the presence of a non-human agent (monkey, automated device, etc.) ownership is transferred.

The Wikimedia argument is that it becomes public domain. I've tried to show how this can have absurd consequences.

And the fact the photographer didn't himself take the shot rules out his claiming copyright as the photographer.

I tried to argue above how this leads to absurd conclusions. (Surveillance cameras, sheds, etc.)

However, because he owned the means (i.e. the camera that took the shot) and in the absence of any other human claiming to have been the photographer, he probably has the best claim to legal ownership of the picture.

Exactly.

Yup...it's insane.

Copyright and related IP law needs to be reformed. Pronto. :tellme:

+1

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Deozaan

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It's all kind of silly. I doubt any court will extend IP legal protections to a non-human at this stage of the game.

I don't think Wikimedia is trying to argue that the copyright belongs to the ape. I think the point of Wikimedia's argument is that the image is essentially in the public domain because the camera's owner doesn't own the copyright (as he didn't take the picture, or even supervise/direct the photograph in any way), and the photographer (the person/creature/thing that took the photo) is not a human, so the ape can't own the copyright either.


40hz

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It's all kind of silly. I doubt any court will extend IP legal protections to a non-human at this stage of the game.

I don't think Wikimedia is trying to argue that the copyright belongs to the ape. I think the point of Wikimedia's argument is that the image is essentially in the public domain because the camera's owner doesn't own the copyright (as he didn't take the picture, or even supervise/direct the photograph in any way), and the photographer (the person/creature/thing that took the photo) is not a human, so the ape can't own the copyright either.

Um...I think most of us got both the joke and the point the Wikimedia Foundation was trying to make. I doubt anybody took the argument that the ape held the copyright very seriously.  ;)

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Now perhaps the ape could file suit...but he'd need representation since (again as a non-human) he couldn't file on his own behalf - and it would be interesting to see how they could establish that he gave his informed consent for an attorney to represent him...hmmm

I suppose a judge could make him a ward of the state and appoint legal counsel on his behalf. But that would be such a career limiting move that I don't think many US judges (and certainly not any residing outside the State of California) would even consider doing such a thing.


Apes have been successfully educated in the use of standardized sign language, and can hold conversations in it.

You could train this ape in the use of sign language and then designate an interpreter to translate it on his behalf to whatever courts or attorneys wanted to hear the case.

Of course that is assuming the ape doesn't simply tell everyone that he has no idea what we are talking about, and just wants people to see him- which would mean the image has been placed in public domain by the photographer and the case is closed.

Fred Nerd

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The way I see it there is the creation of art and then the recognition of it being art.
If the creator didn't know it was creating art, then it doesn't own the copyright.
Example: People leave footprints in the sand and the photographer makes a mint with a picture of them
Example: Someone screws up a bit of paper and throws it in the trash, and an artist makes a mint by putting it on a pedestal
Example: Sheet metal worker hammers a piece of iron and a dj makes a dance music track with the same sound
Example: Someone records birdsongs/waves/whales.

If I build someone a shed (that's my job) then I might retain 'copyright' of the design unless it can be proved that I copied someone else.

If you get someone to help take a photo, and they do no more than a 'reasonable' job, then you own it. BUT if you hand the camera to a professional to take and he uses his skill to achieve a better photo, then he could lay claim to it.
Likewise if you ask an amateur to help build a shed, he only puts in work. But if you ask me, I can add to the normal shed design and claim that as my copyright.
Let's pretend this shed won best shed in a building competition and we wanted to know who gets the prize.

So, since the ape was unaware of what he was doing, he can't claim copyright. The artist (unintentionally) set up a circumstance where this photo was created, he recognised that it could be made into art, he processed the results and can claim them as his art.

Moral: don't ask me to help you build a shed. Please.

Renegade

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@Fred Nerd - You make some interesting comments.

If you get someone to help take a photo, and they do no more than a 'reasonable' job, then you own it. BUT if you hand the camera to a professional to take and he uses his skill to achieve a better photo, then he could lay claim to it.

I don't see why amateur vs. professional should make difference. That's an arbitrary distinction based on whether or not someone regularly is paid for an activity.

As an example, there are "amateur" wine makers out there that make wines far superior to what you will find in your local store.

There are many hobbyists out there that do superb work. The monetary distinction doesn't seem to be a good one.

The important part there is the actual quality of the photo, but that relies on both objective and subjective criteria, and the subjective are the most important for "art". (It's not that hard to meet the objective criteria with point & shoot cameras.)

Likewise if you ask an amateur to help build a shed, he only puts in work. But if you ask me, I can add to the normal shed design and claim that as my copyright.

I think that it's unlikely that for the shed example anyone can come up with anything sufficiently unique to warrant a copyright. Unless there's some significant deviation from what a normal shed is (see below).

Let's pretend this shed won best shed in a building competition and we wanted to know who gets the prize.

Now... there's the interesting part! :)

That actually has come up in the past in a few cases.

There was one that I vaguely remember where an interior designer was hired, then the owner entered her home into a contest and won. The designer was pissed. I don't have a reference for that though.

Does anyone else remember that case? It was inside of the last few years.

It was about "work for hire"...
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Fred Nerd

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The problem is that we are a bunch of engineers trying to define art.
Lots of art students spend many years studying this (paid by the government in a lot of places in the world) and none of them know either. (I have spent many hours listening to pretty girls who study art tell me all about it while I study 'natural art')

In the building trade, the problem is 'gentleman's agreements' all the time. If I draw the plans, I keep the copyright, if I design a unique (for example) timber floor artistic pattern which I simply ask "how about this?" and do then do the job, it's not clear. If I had said: "I'll design a custom flooring system" and drawn it up and the client signed that he had selected my design, then I keep it. Even if I was paid for the time I drew it, that's simply the cost of using my design.

However, the question is: did he make the overall finish by choosing the design, or did I design floor to make the overall finish?
Maybe consider the case of someone hanging a Picasso on the wall and that made the room look good. Who is the artist if the room is considered the artwork?

In the case of the holiday photo, if the person asking did not expect the person taking to do any more than just point and shoot (i.e. an amateur under instruction) then the tourist owns the picture. If the tourist asks a professional thinking that he/she is an amateur, then the professional can
a: take the photo and say nothing
b: first warn the people that this is his job and his work is copyright (kind of like if you ask a signed recording artist to play happy birthday and want to record it).
If the professional says nothing and then claims the photo, the tourist could claim that the photographer had the camera under false pretences and that would open up another can of worms.

If there is an accidental historic photobomb, the professional could claim the photo, but the tourist could countersue for lost revenue that the camera was borrowed under false pretences and the tourist could have made the shot and got the royalties.

That's my opinion.

Oh, and as for hobbyists: a lot of that comes back to licencing and liability. You can ask old Jim how to build a shed and he is not licenced to charge for his information, and if it falls down that was your fault. If you ask me, I can charge for it and I have to pay insurance because you can sue me if I told you wrong information.
A professional photographer would be one who could be reasonably expected to charge for such a service. e.g. has a history of working as such, has a lot of images sold under copyright etc.