Talk:Monkey selfie copyright dispute/Archive 3

Archive 1

Archive 2

Archive 3

Curious about current legal status of image?

Hi, I'm just curious about the current legal status of this image. From what I can see, the last comments on this page appear to be from 2017, and from what I gather, there were some court rulings in 2018.

Or are there some details I'm missing here? I'm just a little confused, and have tried my best to read up on this. Please note that I am generally retired from Wikipedia and no longer making active edits on articles; having followed this story for some time, I was just interested in knowing / clarifying what the official position on this image is today.

Thanks! Sturgeontransformer (talk) 23:17, 10 March 2019 (UTC)

What would an "official" position be? So far there isn't one, because no court has ruled on it. No US court, no UK court. Certainly Wikimedia Commons' decision carries no weight beyond Commons, except that en:Wikipedia seems to have gone along with it too, as did Wikimania. COM:PRP has been ignored completely.

There are several rulings of relevance to some aspects, but none of these have directly addressed Slater's claims that that works are copyrightable, and that he (a human, not a macaque) holds that copyright. Andy Dingley (talk) 23:51, 10 March 2019 (UTC)

Key is that none of the court rulings have changed the previous decision from the Copyright office - that animals can't hold copyright. So for all purposes, we're going to follow the standing copyright office ruling which is that this is a PD image. --Masem (t) 00:54, 11 March 2019 (UTC)

• Why does WP keep repeating that excuse, as if it had any relevance?

Slater is a human, he claims to own the copyright. No court (AFAIK) has ever ruled on that question. Andy Dingley (talk) 02:20, 11 March 2019 (UTC)

The Ninth Circuit has affirmed that a monkey cannot hold rights to the image [1], while the Copyright office specifically says pictures taken by animals cannot be copyrighted. So Slater may claim to own it, but he has to demonstrate to the court that the Copyright office's stance is wrong. That hasn't been done. --Masem (t) 02:46, 11 March 2019 (UTC)

• Once again, you mis-represent the court. The court has never ruled that photographs of animals or by animals cannot attract copyright, merely that the animal can't be the one holding it. That has no relevance for Slater's claim.

Also there is no requirement for a court to rule on its copyright before images are assumed to carry it. If you wish to make some legal claim that it does not, then that's the aspect which would have to be tested in court.

Additionally, Commons doesn't work by legal proof of copyright, but by COM:PRP instead. That is a much stricter requirement. Copyright must not only be clear for our free use of the image, but there must be no significant doubt over this. A case such as Slater's, with repeated approaches to a court and still no clear result, can only be described as wrapped in doubts. Commons should not host these, just because of PRP, even without a judgement. Andy Dingley (talk) 11:16, 11 March 2019 (UTC)

And actually there's yet a new wrickel, speaking OR-ly and IANAL-ly: The Supreme Court ruled last week in Fourth Estate Public Benefit Corp. v. Wall-Street.com that copyright infringement cases cannot start until the Copyright office registers the copyright (that case is here [2]. This means that if Slater is going to take legal action against WMF (for example), he would have to get the Copyright office to accept registration of the photos, which is clearly not going to happen based on their current stance. Meaning that Slater would have to take the Copyright Office to court to challenge that ruling. --Masem (t) 02:51, 11 March 2019 (UTC)

Slater has talked about suing Wikipedia, but since the image is hosted under US law, this looks unlikely to succeed. Some lawyers have said that he would have a better chance under European copyright law. But I think we've seen enough rich lawyers over this. The current status of the image hosted on Wikipedia isn't much different from the one described in the article, as there have been no major developments in the last twelve months.--♦IanMacM♦ ^{(talk to me)} 06:22, 11 March 2019 (UTC)

If Slater has copyright in either country, the US or the country of publication, then Commons is very clear that the images can't be hosted. There is absolutely no wiggle room on Commons for any of "he needs to prove this in US law", "he needs to prove it first", "he won't actually sue us". Andy Dingley (talk) 11:18, 11 March 2019 (UTC)

Given that 1) the WMF has said they are going to consider the image to be uncopyrightable, and thus implicitly stating we can host it (footing any bill that a legal issue arises), and 2) this is a similar issue as National Portrait Gallery and Wikimedia Foundation copyright dispute whhere, again, WMF has backed the use of what one group claimed was copyrighted but the WMF said was not... it should not be our concern what Slater claims. If at the end of this, Slater emerges as the copyright holder to the photos, the WMF will be the organization to satisfy any damages. It's clear that the photos aren't going back into the genie bottle, and Slater would have a hard time on further prosecution, but he certainly can attemtpt to recover monetary damages. But again, at this point, if he wants to claim copyright, he will have to prove it first in court. He has not taken any legal action on his own to prove or disprove this. --Masem (t) 14:37, 11 March 2019 (UTC)

• COM:PRP §1 is quite specific that, "The copyright owner will not bother to sue or cannot afford to." is against Commons' aims. Yet you seem to be advocating just that. Andy Dingley (talk) 14:43, 11 March 2019 (UTC)

• And the WMF has protactively told use to presume there is no copyright owner, since the photo was taken by the animal and the US Copyright office says this is completely ineligible. That puts the legal onus on the WMF, not us. --Masem (t) 14:57, 11 March 2019 (UTC)

• That's not only unsourced, and right against PRP, it's not even a word. I have no idea what you mean, if you're going to begin some process of, "legal argument by making up words". Andy Dingley (talk) 15:04, 11 March 2019 (UTC)

• All I am trying to say is that in the past dispute with this image, WMF has proactively (i misspelled before :P) said that they believe the photo can't be copyrighted, regardless of Slater's claims, and supported the decision to keep the file at Commons. WMF is basically telling us "keep the file, there is no copyright owner, under US copyright". That was a long discussion years ago, under the same concerns of "Will Slater sue WMF?" and the image was kept. --Masem (t) 15:10, 11 March 2019 (UTC)

• A proactive decision to pre-empt a legal decision? I did wonder if that was what you meant, but it made even less sense.

It's sometimes said that a plaintiff who acts as their own lawyer "has a fool for a client", but I wonder what the term is for one who thinks they can act as the judge as well?

My point is here, how does any of that sit alongside our supposed policy of COM:PRP? It assumes the law, it claims that the law (whichever way it falls) is clear, and it acts on the basis that Slater will not sue. All of those are against the clear statements of PRP.

Does PRP need to be replaced by, "PRP will not apply, so long as someone makes a vague handwave claim that WMF have decided for themselves that the law of just one country, is both clear and against the complainant, and that the laws of any other host countries will be ignored too." Because that's what implied by that statement. Andy Dingley (talk) 15:37, 11 March 2019 (UTC)

First off, the WMF's statement is sourced: [3] (search for the Monkey entry, dated Jan 2014). And if the WMF says so - and they're the ones on the hook for any misassignment, then there's no reason to follow their claim. I would completely agree that if the claim that the photo has no copyright owner cam only from editors and contributors to commons, all other factors the same, then COM:PRP would say we should delete. But with legal experts at WMF making that determination, that changes the subject. --Masem (t) 15:44, 11 March 2019 (UTC)

• That is no sort of source for what you're claiming. We received a takedown request from the photographer, claiming that he owned the copyright to the photographs. We didn't agree, so we denied the request.

That's just a source that WMF rejected Slater's letter, not a claim that WMF has some legal argument that his actual claim was invalid, or the claim Masem is making that WMF have come to some sort of legal judgement (and of course, they simply have no capacity to do so). Andy Dingley (talk) 15:59, 11 March 2019 (UTC)

Masem is entirely correct. to the above I would add that, despite the WMF having $113 million USD in assets, Slater has never followed through with his threats to sue the WMF. There are many lawyers who would take such a case on a contingency basis if they thought he had a chance of winning, and there is no US law that prevents him from filing a case. A court may very well reject a case once it is filed, and may even sanction the filer if his lawsuit is frivolous, but in the US pretty much any private individual or organization is allowed to file a lawsuit against any other private individual or organization. The "it was thrown out of court" step comes after filing a lawsuit, not after threatening to file a lawsuit. --Guy Macon (talk) 15:49, 11 March 2019 (UTC)

• You think that Slater's ability to sue is based on the wealth of the target, rather than his personal wealth? Andy Dingley (talk) 16:00, 11 March 2019 (UTC)

• (edit conflict) Absolutely. And I am right. Nobody wants to sue an organization that has no money. See Deep pocket. Slater's wealth or lack of wealth is irrelevant. Like I said, in the US if you have a case, multiple lawyers will call you and tell you that they are willing to take your case, charging you nothing if they lose. See Contingent fee. You can still get a lawyer if you don't have a case, but they will require payment up front. --Guy Macon (talk) 16:53, 11 March 2019 (UTC)

• Slater isn't in the US. Andy Dingley (talk) 17:28, 11 March 2019 (UTC)

• Your point being? Are you imagining that a UK court has jurisdiction over a US corporation? Are you fantasizing that any US lawyer who thought there was a case would refrain from suing a fat juicy US target on behalf of a UK citizen? Please. Study the law a bit before offering opinions on how it works. You don't need to be a lawyer, but you should at least read a few webpages about how lawsuits work before you embarrass yourself further. --Guy Macon (talk) 20:39, 11 March 2019 (UTC)

• And even if Slater could bring the WMF to UK to sue, he has the same problem there as the UK copyright is similar to the US, that the photos would not be copyrightable, according to [4]. --Masem (t) 20:44, 11 March 2019 (UTC)

• Again, you're missing the point. British law simply says that animals can't hold copyrights to images taken "without human intervention". No court, in the US or the UK, has ruled that Slater did not provide enough "human intervention" to qualify for the copyright himself. The article you linked to specifically quotes someone from the IPO as saying However the question as to whether the photographer owns copyright is more complex. It depends on whether the photographer has made a creative contribution to the work and this is a decision which must be made by the courts, and cites the example of a cameraman not owning the copyright to a British motion picture despite operating the camera. --Ahecht (TALK
  PAGE) 21:02, 11 March 2019 (UTC)

Re: the WMF's statement to the DMCA - do you think they issued their denial without seeking advice of their inhouse lawyers? Yes, lawyers are not judges, so there is a risk those lawyers may be proven wrong, but that only can be done if there's a court case. --Masem (t) 16:42, 11 March 2019 (UTC)

• My point is (still) that PRP requires an absence of any significant doubt, in order to host content. WMF's refusal to Slater doesn't remove such doubt, certainly not when we don't even know what that reply and its basis was. We still don't know that. Your link doesn't give it. Andy Dingley (talk) 21:56, 11 March 2019 (UTC)

• Do see what the PRP is. It's not read the way you're saying; its saying those are defenses that are inappropriate to consider as a reason to keep the image as commons (comparable to our WP:ATA). No on is arguing here "Slater is not going to sue WMF so we keep the images", we're saying "WMF has said they recognize that the images are very much likely uncopyrightable" as our reason to keep. No violation against PRP at that level. --Masem (t) 22:07, 11 March 2019 (UTC)

@Masem: FWIW, the Fourth Estate case construing § 411 has no bearing here. The § 411(a) pre-litigation registration requirement applies only to US works ("no action for infringement of the copyright in any United States work shall be instituted until registration..."). But (slight oversimplification here, but cutting to the essentials) the photo was not first-published in the US and Slater is not a US national; so the work is not a "United States work" within that term's definition in § 101. The registration requirement does not apply here at all.

It would actually be a treaty violation for the U.S. to impose the registration requirement on foreign works of foreign authors. The Berne Convention, the WIPO Copyright Treaty and TRIPS all forbid conditioning enforcement of copyright on formalities such as registration. It's only applicable to US nationals because the US is free to impose that condition on its own nationals without regard to the treaties. TJRC (talk) 22:02, 13 March 2019 (UTC)

Ah, very much on point. --Masem (t) 22:13, 13 March 2019 (UTC)

Oh, also, I forgot: even if this were a US work, you don't actually need a registration to sue; you need either a registration or a refusal. So, even if Slater were an American and the requirement applied, if the Copyright Office refused to register, he could still sue. It's just that, instead of being able to wave the registration certificate to satisfy his burden of showing that he owned a copyright, he'd have to convince the court independently. That's a tough burden, because he really has to argue why the Copyright Office, the agency charged with interpreting the statute for purposes of registration, was wrong. And the Copyright Office would be allowed to join the suit explaining why it was right and why the work is not subject to copyright. Quite an uphill battle for a refused applicant. TJRC (talk) 22:41, 13 March 2019 (UTC)

If this ever went to trial (it won't; clearly Slater doesn't want his claims to be tested) Slater would have to overcome the problem of his changing story. The Guardian was the first to tell the story (The Daily Mail (spit!) stole the story and presented it as if they had written it it shortly after that). According to that article[5] Slater said "it wasn't long before the crested black macaque hijacked the camera and started snapping away" and "He must have taken hundreds of pictures by the time I got my camera back"

The next day he told Amateur Photographer a slightly different story.[6] He said that his camera had been mounted on a tripod when the primates began playing around with a remote cable release as he was trying to fend off other monkeys.

Several day later, his story changed again. He told the BBC "I became accepted as part of the troop, they touched me and groomed me... so I thought they could take their own photograph. I set the camera up on a tripod, framed [the shot] up and got the exposure right... and all you've got to do is give the monkey the button to press and lo and behold you got the picture."[7]

That last bit directly contradicts his earlier "He must have taken hundreds of pictures by the time I got my camera back" claim. Did he change his story in order to make his copyright claim stronger? Were his initial statements stretching the truth to better sell the idea of a Monkey Selfie to the press? We will never know. If he did go to court the defense would have access to all of the photos his camera took that day -- all timestaped -- and would be able to come up with some actual evidence concerning what happened when. --Guy Macon (talk) 21:39, 11 March 2019 (UTC)

IANAL, But I don't think Slater can sue Wikipedia at this point.

The U.S. Copyright Act imposes a three-year statute of limitations on copyright infringement claims, and requires that any a civil lawsuit be filed within three years after the claim accrued. There is a difference of opinion as to whether "accrued" means when the infringement happened and when the copyright holder discovered it, but in this case those two things both happened more than three years ago.

The images were uploaded to commons in 2011, and Slater started complaining about it within days. The Wikimedia Foundation refused to remove the pictures from Wikimedia Commons in 2014, and Slater threatened to sue in 2014. All of these events happened more than three years ago, and so (if I understand the law correctly) if Slater files a lawsuit tomorrow, it would be thrown out of court because he waited too long. --Guy Macon (talk) 20:55, 11 March 2019 (UTC)

The upload happened in 2011, and the time period to bring suit for that upload has passed. However, the image is still resident on Wikimedia servers and is still being downloaded and has been downloaded many times in the last three years. Each of those downloads is a successive purported infringement, and the statute of limitations runs from each. Put another way, there is effectively a running three-year window for successive infringements for which the statute of limitations has not run.

Mind you, my take is that this image is not a work of authorship within the meaning of the US copyright statute, and that it is not subject to copyright; so Slater would not prevail in any action he brought. But the § 507 statute of limitations is not the reason. TJRC (talk) 22:12, 13 March 2019 (UTC)

TJRC's legal theory ("...a successive purported infringement, and the statute of limitations runs from each...") is a rather interesting interpretation of the statute of limitations that would meant that there is no statute of limitation for many alleged infringements. However, most lawyers and most judges have a different interpretation:

"Court Dismisses Copyright Infringement Claim Despite Claim for Continuing Infringement... The 10th Circuit ruled that he should have filed his copyright infringement lawsuit within three years of knowing that his dissertation had been copied for placement in the University’s library, regardless of whether the infringement continued."[8]

"Civil actions for copyright infringement must be 'commenced within three years after the claim accrued.'... Most courts apply the 'discovery rule,' where an infringement claim does not accrue until the copyright holder discovers, or with due diligence should have discovered, the infringement."[9][10]

"The statute of limitations for civil copyright infringement is three years from when the infringement is discovered, or should have been discovered with reasonable diligence. 17 U.S.C. §507(b)."[11]

"Under copyright law, the statute of limitations tolls, or begins running, when the infringement is discovered. So, if someone republished your work as their own six years ago, but you just discovered it, you can still sue for copyright infringement"[12]

"Recently, I received a call from an individual indicating that their copyrighted work had been infringed. My first thought is that Traverse Legal can easily assist with a Copyright Infringement Notice Letter or DMCA Take Down Notice. That is, however, until they tell me that they found out about the infringement four years ago. FOUR years ago?! And you’re just now pursuing it? Unfortunately, this means that the Statute of Limitations had run on a potential copyright infringement claim"[13]

"A cause of action for copyright infringement accrues when one has knowledge of a violation or is chargeable with such knowledge."[14]

"The copyright statute of limitations of three years begins when a copyright holder discovers a violation, not when the last act of copying occurred."[15]

I searched and could not find any case where a court extended the Statute of Limitations because allegedly infringing material remained available on a website. Can anyone find such a case?

Also, whenever this comes up, someone is sure to respond by confusing the Doctrine of Laches with the Statute of Limitations. A statute of limitations is a definitive time limit set by law in which an individual may make a legal claim or a prosecutor may file criminal charges. Statutes of limitations only focus on whether the statutory time period has passed. The Doctrine of Laches is case-specific and relies on the judge's decision as to whether a plaintiff waited too long and the defendant can't put together a reasonable defense because of the plaintiff's inaction. In Petrella v. Metro-Goldwyn-Mayer, Inc., et al. The U.S. Supreme Court ruled that, so long as copyright infringement claims are made within the statutory period of three years, the Doctrine of Laches cannot bar such claims. It made no ruling regarding any statute of limitations law. --Guy Macon (talk) 06:19, 14 March 2019 (UTC)

And if we're talking UK law, I think that's 6 years from the point of the infringing copy if I am reading this right [16]. --Masem (t) 16:57, 14 March 2019 (UTC)

This is all very technical. But as Jarndyce and Jarndyce shows, the main driving factor in civil actions is whether the parties involved can afford to pay for lawyers and their interminable fees.--♦IanMacM♦ ^{(talk to me)} 17:53, 14 March 2019 (UTC)

Hey, it's not my theory! In the Petrella case you mention, even though the statute of limitations wasn't at issue, Justice Ginsburg goes into quit a bit of detail on it:

It is widely recognized that the separate-accrual rule attends the copyright statute of limitations.[5] Under that rule, when a defendant commits successive violations, the statute of limitations runs separately from each violation. Each time an infringing work is reproduced or distributed, the infringer commits a new wrong. Each wrong gives rise to a discrete "claim" that "accrue[s]" at the time the wrong occurs.[6] In short, each infringing act starts a new limitations period. See Stone v. Williams, 970 F.2d 1043, 1049 (C.A.2 1992) ("Each act of infringement is a distinct harm giving rise to an independent claim for relief.").

Under the Act's three-year provision, an infringement is actionable within three years, and only three years, of its occurrence. And the infringer is insulated from liability for earlier infringements of the same work. See 3 M. Nimmer & D. Nimmer, Copyright § 12.05[B][1][b], p. 12-150.4 (2013) ("If infringement occurred within three years prior to filing, the action will not be barred even if prior infringements by the same party as to the same work are barred because they occurred more than three years previously."). Thus, when a defendant has engaged (or is alleged to have engaged) in a series of discrete infringing acts, the copyright holder's suit ordinarily will be timely under § 507(b) with respect to more recent acts of infringement (i.e., acts within the three-year window), but untimely with respect to prior acts of the same or similar kind.[7]

In sum, Congress provided two controlling time prescriptions: the copyright term, which endures for decades, and may pass from one generation to another; and § 507(b)'s limitations period, which allows plaintiffs during that lengthy term to gain retrospective relief running only three years back from the date the complaint was filed.

Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962, 1969-70. TJRC (talk) 18:59, 14 March 2019 (UTC)

TJRC is correct about current U.S. law in light of the Petrella case. Guy Macon's view was the most widely accepted one prior to Petrella, but isn't any longer in light of that decision. The current status of the copyright as unregistered might be an obstacle to the claim, but timeliness would not. (As I have written several times elsewhere, I find Wikipedia's and Wikimedia's refusal to recognize Slater's rights troubling, but that is a personal opinion rather than a legal one.) Newyorkbrad (talk) 19:47, 14 March 2019 (UTC)

Has any court ever ruled that having something continuously available on a webpage is "a series of discrete infringing acts" and thus not covered by the statute of limitations? I could not find such a case. How about an infringing book sitting on the shelf of a public library? Is the fact that the book exists "a series of discrete infringing acts"? What happens if a printed encyclopedia includes some infringing material? printed encyclopedias hang around for many years before a new edition is created. Is the fact that it exists "a series of discrete infringing acts"? If Newyorkbrad is correct (IANAL, so I could be wrong) I am having a hard time figuring out how any copyright infringement can ever go past the statute of limitations. --Guy Macon (talk) 23:40, 14 March 2019 (UTC)

@Guy Macon: You raise an interesting point which is separate from, though related to, the one I was discussing. I'm not aware of any copyright cases discussing the statute of limitations in the context of a static webpage (though I haven't researched the issue extensively), but I can imagine the argument you suggest carrying the day if the images remain only in the places there were originally posted. On the other hand, if the image is used on another wiki page, or perhaps if Wikipedia content including the image is used in another format (e.g. one of those booklet reprintings), that would be a new publication. In the analogous context of a defamation claim, the New York courts hold that posting a statement on a given webpage starts the SOL running, not that it runs anew every day the page is still up; but posting the same statement on a different page is a new publication. Similarly, in the context of a paper encyclopedia, the fact that the books are still sitting on a library shelf today does not mean that the SOL runs anew from today—but if a new set were to be sold to the library, that would be a new publication and re-set the clock. Regards, Newyorkbrad (talk) 14:49, 15 March 2019 (UTC)

That makes a lot of sense. If a court ever found that the image was a copyright infringement Wikipedia would of course take it down -- most likely in less than five minutes after the court issued the ruling. WMF legal is of the opinion that the court wouldn't find that the image was a copyright infringement, and Slater clearly has no intention of trying to get a court (US or UK) to rule on it, but let's assume for the sake of argument that he did sue and would have won if the statute of limitations did not apply. Could he win on the related claim of "a series of discrete infringing acts"? That's an interesting question. A bunch of Wikipedia editors use an image again and that is clearly labeled as being free to use, but only because of the decision by WMF legal. I don't know if a court would waive the statute of limitations in that case. I can see good arguments either way.

The only similar case I could find (and it has a bunch of dissimilarities which I am not qualified to judge that importance of) is described here:[17]

"Andrew Diversey, a doctoral candidate at the University of New Mexico, learned in February 2008 that his dissertation had been reproduced for deposit in the University’s library. Despite Diversey’s protest, the University refused to remove the dissertation. The University later listed Diversey’s work in its library catalog, making it available to the public.

"But Diversey didn’t file suit for infringement until June 15, 2012. The district court dismissed the case for being filed after the statute of limitations had expired. So Diversey appealed the ruling and asked the 10th Circuit Court of Appeals to review the matter.

"On appeal, the 10th Circuit agreed that Diversey’s claim for unauthorized reproduction was filed too late. It explained that the majority of courts hold that 'a claim ‘for copyright infringement accrues when one has knowledge of a violation or is chargeable with such knowledge.’ . . . [The Statute of Limitations] does [not] provide for any reach back if an act of infringement occurs within the statutory period.' 'In other words, the majority view rejects the notion that a plaintiff can recover for acts of infringement occurring more than three years before the filing of a complaint merely because some related act of infringement occurs within the limitation period.'"

"When applied to Diversey’s claim, the 10th Circuit ruled that he should have filed his copyright infringement lawsuit within three years of knowing that his dissertation had been copied for placement in the University’s library, regardless of whether the infringement continued." (emphasis added)

"But not all courts agree. A fewer number of courts apply a 'continuing wrong' exception, which means that the limitation period 'does not begin to run on a continuing wrong till the wrong is over and done with.'"

"Fortunately for Diversey, he had another infringement claim for acts that occurred within the three years of filing suit ('each act of infringement is a distinct harm.'). Specifically, Diversey’s exclusive right to distribute his work was allegedly infringed when the University listed his work in its library catalog for public lending. As Diversey didn’t discover the distribution until June 16, 2009, his Complaint was timely filed for that claim. So the Circuit Court remanded the case back to the District for further proceedings."

In Slater's case, the images were uploaded to commons in 2011, Slater learned about it in 2011, and Slater learned that Commons was making the images available for any editor to use in any article in 2011. But what if an editor used that image in an article in 2019? Is that "a discrete infringing act"? Could Slater sue that Wikipedia editor for damages? Or would the courts decide that taking the image down as soon as the ruling about it being infringing was enough? I don't know the answers, and as long as Slater chooses not to file a lawsuit, I don't see how we will ever get definitive answers. --Guy Macon (talk) 18:43, 15 March 2019 (UTC)