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from the monkey-see,-monkey-do,-monkey-sue? dept
Remember our story last week, discussing the copyright issues of monkeys taking photographs of themselves using a photographer's camera that he had left alone? The whole post was about whether or not anyone had a legitimate copyright claim on the photos, noting that the photographer, David Slater, almost certainly did not have a claim, seeing as he did not take the photos, and even admits that the images were an accident from monkeys who found the camera (i.e., he has stated publicly that he did not "set up" the shot and let the monkeys take it). And yet, Caters News Agency has a copyright notice on two of the images, claiming to hold the rights to them. We doubted that the monkeys -- who might have the best "claim" to copyright on these photos, if there is one, had licensed the images. Either way, we were a bit surprised to receive a notice on Monday from Caters News, telling us they represented David Slater with respect to the syndication of those photos, and asking us to take down the photos. The notice was not a DMCA takedown notice. It doesn't even mention copyright, though that seems like the only basis upon which they would make such a takedown request. And, to be clear, it was not in the least bit threatening. There is no legal language and no threat at all in the note. Here it is in its entirety (minus the name and contact info of the person who sent it): Hello, I have noticed you have used David Slater's images on your website. However we are representing David Slater and syndicating these images on his behalf. http://www.techdirt.com/articles/20110706/00200314983/monkey-businesscan-monkey-license-its-copyrights-to-news-agency.shtml These images are being used without David's or our permission, therefore can I ask you remove these images from your site immediately. Please email me to inform me when this done. Thanks Given that the very nature of our post was to point out that it's unlikely that Caters has a legitimate copyright claim on these photos, it struck me as a bit odd that they would not even address that at all. In fact, I almost wondered if this was a prank from someone. So I contacted Caters to confirm that it was legit and received confirmation saying that it was, indeed, genuine. After consulting no fewer than four lawyers (I'm nothing if not thorough) on this
regardless of whether "fair use" applies. and it appears they have a rather different view on these things: Michael. That's. At the same time. It's also not a valid interpretation of the . If you ARE asserting a copyright claim. regardless of the issue of who does and doesn't own the copyright . In response to your email concerning the posting of images that were taken by some monkeys using David Slater's camera. As this very discussion relates to the point of our original post.. we decided to make it clear that we believe. so I'm trying to understand the basis for claiming that the copyright on the images are Slater's to license? Separately. had the right to license them to you)? In the original article. so much as the copyright issues raised by the photos. if they can claim that the person using the image is not the copyright holder either -. strongly. what is the basis for your claim that Slater holds the copyright on any of the images (and thus..Caters News Agency is claiming that anyone. if they actually are covered by copyright. that the use of the images was protected fair use. copyright holder or not.matter. Michael Masnick Caters was quick to reply. displaying the photos as part of that discussion was necessary to make the point. we believe strongly that the use of the images in our post was quintessential fair use under US copyright law. since they did not make clear the actual basis for the request. can issue a takedown on a photo. but in the absence of a copyright claim it is not clear to me on what basis you might be asking that the photos be removed.I presume the Daily Mail online. I decided that the best course of action was just to ask for a clarification. I was hoping you could elaborate on your request for us to remove the images. assuming they could come back with some legal argument for why the copyright was legit. Your request never uses the word copyright. The post itself was not about the photos. Furthermore. an interesting interpretation of the law. Slater himself apparently admits that the images were an accident from monkeys who happened upon the camera. We believe the very nature of the discussion around the copyright question makes this a transformative use of the photos. If I'm reading this correctly -. On the presumption that you do not like to encourage copyright theft (regardless of who owns it) then please remove the photographs. and point out that it's not at all clear Caters has any legal claim whatsoever. Since the initial email was not threatening or legalistic.and I believe that I am -. without having a lawyer respond on our behalf. You have blatantly 'lifted' these photographs from somewhere .it is 100% clear that the copyright owner is not yourself. Section 107 of the Copyright Act lists out "news reporting" as one of the key purposes for which fair use is designed to cover. as it would likely further the commentary around the copyright on these images. we also intend to make this discussion public. I decided that it was best to reply in kind. Thank you. As such.
Also. Thus. And. You could say I might be encouraging fair use. sending a takedown notice. even if it does turn out. barring Caters providing us with a sound basis for doing so. Finally. then there is no "theft" or "lifting" at all. Caters does not even seem willing to consider that this image might not even have a copyright given its provenance. in fact. so it seems odd that Caters would imply no such thing exists. the second paragraph seems completely out of left field. no. believing that it is universal and that it gives total control to the copyright holder. and when something is covered by copyright. that does not matter. but as I made clear in my email." implies someone falsely taking possession of the copyright itself. The whole point of fair use is. is what's actually against the law. It's unfortunate that a company that has built a business around copyright appears not to understand these basic facts. in some places. I don't see how that applies to us at all. to allow those who are not the holders of the copyright to make use of the work in some cases. that Caters does have a legitimate copyright interest in the photo. I'm not "encouraging copyright theft" at all. "copyright theft. it does not give the rightsholder full control over every use. and the company is in no position to issue a takedown of the images.law. More importantly. doesn't it? Separately. Furthermore. We do not believe Caters News Agency has a legitimate copyright interest in the photo. under Cater's own definition. In fact. so bringing up the Daily Mail seems to suggest a bizarre situation where Caters appears to believe that our fair use efforts violate some totally unstated right that the Daily Mail holds on these images. In fact. it seems just as reasonable for us to ask that it take down the image. this highlights another case of someone completely misunderstanding the purpose and intent of copyright law. not making use of a work. whether or not we got the images from the Daily Mail seems entirely superfluous. We're not the ones claiming a copyright on an image we have no copyright interest in. we have no plans to remove the photos or make any changes. given that we do not believe that it has a valid copyright interest in the image either. if you are not the copyright holder. Not everything gets copyright. but that seems like a good thing. If the images are either public domain or fair use. through some convoluted process. we stand by our original analysis. Either way. It's absolutely true that we are not the copyright holder. At no point has Caters suggested that the Daily Mail holds the copyright on these images. we believe that our use falls squarely into the classical confines of fair use under US copyright law. . as we believe that our use qualifies as fair use.
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