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Simian selfie stupidity: Macaque snap sparks Wikipedia copyright row

Jimbo Wales versus the little guy

By Gavin Clarke, 7 Aug 2014

Comment When a black macaque on the Indonesian island of Sulawesi took a selfie using photographer David Slater’s camera in 2011, it broke the barrier between man and monkey in more ways than one.

Yes, it showed the world that speechless beasts are as self-obsessed – and location-aware – as humans. Give a monkey a camera and, inevitably, it will take a selfie.

Accordingly, the picture in question was picked up by the Daily Telegraph, along with the rest of the internet.

But human affairs are more complicated than the law of the jungle, and now legal eagles are involved. Users of Wikipedia took the monkey shot for their own and posted it on the open-source encyclopedia with the claim that it was in the "Public Domain" – as its creator was a non-human. That means anybody can now scrape or download the simian selfie and use it without paying a penny in royalties. Who heard of a monkey with a lawyer, after all?

Yet Slater is reported to have asked Wikipedia to take the photo down, saying he owns the copyright – but the Wikimedia Foundation, which runs Wikipedia, has refused.

The Wikifiddlers claim that because the photo was taken by an animal (the macaque pressed the shutter on the infamous pic), and no animal can own copyright, Wikimedia is free to effectively republish the snap freely.

Oh, do stop monkeying around

The open rights crowd, predictably, have taken up arms on behalf of the monkey, belittling the photographer’s claims and making legal pronouncements on the basis that the image is in the “public domain".

We’ve been here before with the open rights mob – that crowd we’re supposed to believe is so wise it will steer us no wrong – whose interests just happened to be aligned with those of massive organisations.

They marched to defend Google, too, when the content-free ad network tried to hoover up the world’s books for itself. Nine years ago, Google started scanning 20 million library books for its Library Project just because it could.

Defenders saw this as some massive work of public good – a public service, digitising precious works and making them available to the masses.

But the Association of American Publishers and the American Society of Media Photographers took exception, as Google had started scanning works that were still under copyright. They took Google to court in separate legal disputes. In its final settlement, Google was forced to let copyright owners of books scanned by Google opt out of the programme. Yet Google was also given the unique right to digitise and make money from "orphan works," titles whose rights are controlled by authors and publishers who have yet to come forward.

Here’s how Google’s director of content partnerships Tom Turvey justified the scanning: “If a work is truly orphaned, by definition it has no copyright owner to ‘opt out’ of the database.”

There’s plenty to disagree with in that sentence and to be said about transfer of ownership. But the biggest issue is Google – a massive commercial operation that’s answerable to shareholders – distributing orphaned works for which it need not pay.

The Google library project achieves three things: search traffic, ads against returns of search sold for money, and ads against the book.

Moreover, in the modern era of the ebook, Google is positioning to have a presence against Apple’s iPad as a reader and against Amazon’s Kindle. Google’s still working out how exactly to do that, but it’s at least got content to use should it need it.

Which brings us back to the monkey.

That pesky monkey shot

Wikimedia says the monkey's money shot is free for all and sundry to use.

By Henrik Ishihara licensed under Creative Commons Attribution-Share Alike 3.0 Unported license.

Another black macaque, not taking a selfie, snapped by Henrik Ishihara in northern Sulawesi. Licensed under Creative Commons Attribution-Share Alike 3.0 Unported

This is nice if you are making a birthday card with a funny monkey on for your daughter. Nice, too, if you’re, hypothetically, in Colgate's marketing department making a campaign to brush your teeth – the monkey is flashing a hell of a set of yellowed gnashers. Nice, too, if you’re (once again, hypothetically) in marketing at British Airways, looking for ways to promote fun or relaxing escapes for the whole family destinations that offer safaris in exotic destinations that are home to monkeys.

See the difference? Even a Creative Commmons licence can specify that an image "not be used for commercial purposes".

But this can't happen on the web, can it? Sadly it already does. Facebook is another massive web property engaging in web alchemy: trying to turn users and their data into purest revenue. The company's terms and conditions let advertisers use your freebie photos to flog their merchandise and services on its site.

According to Facebook's terms and conditions:

"You give us permission to use your name, profile picture, content, and information in connection with commercial, sponsored, or related content (such as a brand you like) served or enhanced by us. This means, for example, that you permit a business or other entity to pay us to display your name and/or profile picture with your content or information, without any compensation to you. If you have selected a specific audience for your content or information, we will respect your choice when we use it."

Those poo-poohing Slater forget he is the little guy – he's the one who travelled to Indonesia to get the snap - and he is dependent upon revenue from his images for his living. Their use by commercial outfits, as opposed to me using a picture of his to make a birthday card, is what brings home the bacon for him.

The photographer might not have pressed the button on the camera – that was the monkey – but it’s clear from the photoreel what Slater was doing. Yet context is not important to the pro-Wikimedia marchers.

No, I'm not just bashing you people for the sake of it – read on

I like Wikipedia and use it a lot. The site promotes individual photographers and their images and satisfies a deep craving among those who like to share or believe in a common good.

Yet the good snaps on the site are volunteered. The author or organisation that owns the copyright has made them available through licensing them freely, or the law in whatever country concerned has stated copyright has expired due to their age, or the shot was taken by a government employee. But the grant in all of these cases is explicit.

There’s nothing explicit about what’s happening here with Slater's monkey shot.

Give a million monkeys in a room a typewriter each and they will eventually reproduce the entire works of Shakespeare, it’s said.

Give giant web operations trying to extract revenue free rein over creative works and rights, and they'll make a monkey out of you. ®

Monkeyshotnote

Vulture Central's backroom gremlins haven't included the offending monkey shot. Why? Because we haven't got hold of Slater to ask permission to include his picture in this article. Simple courtesy.

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