On Copyright and Monkeys
Before you get to my post, here is some background reading. They're short, so please go read them now:
- If a stranger grabs your camera and snaps a photo, who owns the copyright?
- Photos must be the product of human authorship to be copyrightable
- Shutter-happy monkey turns photographer
From the latter article, Section 503.03 of Compendium II of Copyright Office Practices published by the US Copyright Office is quoted as reading, in part:
"Thus, a linoleum floor covering featuring a multicolored pebble design which was produced by a mechanical process in unrepeatable, random patterns, is not registrable."
Note that the impact of that statement isn't readily apparent unless you are familiar with the amount of work that goes into manufacturing equipment, especially in a plant producing linoleum floor coverings: there is mixing to be done, regulation of liquid flows, management of extrusion speed to get a consistent density of lino, and then there's the machine to produce the random texture on top. There is far more work in this instance than merely composing a scene and taking a photograph.
I would interpret this as: a picture taken by an automated system is not registrable. The intervalometer is responsible for the picture, the human had no authorship in it. Just the same way that the human who selected a nice piece of driftwood from a pile, polished it and mounted it, didn't have any authorship in the work. Sure, they contributed a significant amount of effort to the work, but they didn't grow the tree, make it twist that way, and thus have some authorship over the form the tree has assumed. A living bonsai tree that is part of an active bonsai sculptor's collection though? I'd expect the grower would have claim of authorship over that bonsai (but not the DNA of the tree, for obvious reasons since they are merely an author, not The Author).
There is a world of difference between publishing the photo you found on a camera versus taking the photo yourself. "Oh, but the monkey used my settings" is the wrong argument to use: if using someone else's settings was enough for them to claim authorship, Apple, Nikon and Canon would own the lion's share of all photographs contributed to Flickr (because most cameras are still on Auto when they capture good photos). "Oh, but the monkey used my camera"? Just opening up a can of worms: watch out for the future where Nikon leases the camera to you, but they still own it, and thus own the copyright on all pictures produced using that camera.
No, the only position that makes any sense is that the entity responsible for actually taking the photo, has claim to the copyright of that photo. If that entity is not able to claim copyright (because they are not human), no copyright is assignable because you cannot give rights to non-humans (that's just not the way the law works. Imagine if you could give rights to monkeys: would we have to buy their forests off them before chopping them down to grow palm trees to feed the burgeoning palm oil market? that would raise the cost and thus eliminate our profits).
Until monkeys are recognised as sentient beings capable of owning their own copyrights, the monkey photos should be considered un-registrable. Once monkeys are recognise as sentient beings capable of owning their own copyrights, it will be the monkeys and not the photographer who own the copyright.
Just because it was your camera doesn't make it your picture. The machine took the picture, the machine can't own copyright, thus there is no copyright claimable. The monkey took the picture, the monkey can't own copyright, thus there is no copyright claimable.
If I took a picture with your camera, who owns copyright? I do, unless you paid me to take the photo, in which case it would be classed as "work for hire" in many nations.
Of course, I'm not a lawyer, and even if I was, this advice is free and unsolicited and you should consult your own lawyer familiar with your local regulations before taking aboard any advice or opinion I might have.
Just consider for a moment, what's the difference between a professional photographer with a Nikon D7000, and a clueless chump with a Nikon D7000? They're using exactly the same camera with exactly the same lenses.
The difference is in their power of authorship: how they choose to set a scene, compose the frame, adjust the camera (stick to auto? use manual settings? aperture or shutter priority?), and finally, click the button when the frame is how they wish to capture it.
Now all this discussion about authorship is well and good, but the reason the discussion exists is that you need to prove in a court of law that you exercised authorship, so that you can claim copyright. How do you determine, in a court of law, that someone exercised authorship over the production of a photograph? Do you have some kind of hand-waving test of "intent" and "motive"? Why not resort to the obvious technical evidence that the shutter button was pressed? I would prefer to deal with a court where the non-sensical shutter button press means that copyright is assignable, rather than having to argue about whether the photo that was captured was the photo I was after.
How many of us have actually got the image we wanted? Not many. That's why we do things like bracket exposures, use different ISO equivalents, and so on. How can we claim "authorship" when we have to do so much guesswork? We even have names for the techniques used to make the guesswork easier: “metering”, and “bracketing” for example.
Using that evidence, it would be trivial to show that a professional photographer was merely clicking the shutter button until they got something that looked nice. Which is what the monkey was doing (take a shot, check the picture, move the camera further/closer to adjust the framing).
And all this is before you get into the complexities of model releases. Good grief!