Various primates are stealing our credit!

Tiff Portrait close Aug 16WM

What exactly does the photographer contribute to a photograph and how to not get sued by monkeys.

I’ve been messing around in the studio this week, looking for an approach to actor’s headshots, using continuous LED lighting that is consistent (so clients know what they are getting) but a system that is also easily fine-tuned to suit each subject.

After a while I came up with something that I think works, so I asked a friend if she didn’t mind stepping in to the set up so I can see how things look and maybe she would get some profile photos that she could use herself.

She was happy to do so and we took some pictures that we both liked and I was feeling fairly comfortable with both the way the lights where looking and how easily I could adjust them while shooting.

While I was at my desk running through the pictures, editing them down to the shots I would work on in Photoshop, I noticed that my friend was back in front of the lights shooting her own portrait on her phone. She was standing where I had told her to stand, under my lighting set up and in front of my backdrop, in my studio, shooting selfies.

Tiff selfie

The offending, Instagrammed selfie.

 

Before I knew it, she had posted them on Instagram, and within what seemed like minutes people were complimenting her on her shots! (and it’s actually fine on this occasion because I know the pictures wont go any further than that and she did give me a credit for “the lighting”…She is also quite happy for me to mention this here and thinks it’s an interesting problem), but what interested me was my emotional reaction to what she had done; I felt like she had kind of stolen something at first. This was my photograph wasn’t it?  I had spent days setting this shot up, and those days were on the back of five years of art and photography education and over twenty years experience. It was my creative space! Surely anything that happens in that six foot cube of carefully balanced light belongs to me? Just because I wasn’t specifically the one who captured what was happening, that doesn’t mean that I wasn’t responsible for what did happen, does it?…I know taking a photograph requires the photographer to do four main things:

1: Choose the ingredients of the photo and what the ingredients ‘do’. The ingredient is the subject, be that a model, or landscape or whatever.

2: Deciding on the background. That could be a studio backdrop, sky, a street etc.

3: Work out how those things should be lit; Flash, LEDs the aurora borealis, sunlight or the lack of it, whatever.

4:  Choosing what the subject is ‘doing’ in the photo. That happens by either controlling what the subject does and then recording it, or waiting for the subject to do its own thing and then pressing the shutter at that moment.

So, I did the first bit, I made the space, but then my friend did the next bit, she did the ‘doing’, she was the subject, and then she chose when to press the button. So I can’t say that it was my photo can I? But then why did I feel as if it was mine? Why did my skin prickle a little bit at the thought of her selfie, with my lighting going public with no edits? I felt like someone had shown a painting of mine a week or two before I’d finished it, like the bedroom door had been opened while I was still half in my pyjamas…

Hers wasn’t a bad shot. It had ridiculously saturated colours, the way all smartphones make everything look, and the way we expect the Marvel Comic-Blockbuster/ Instagram world that we now live in to look like. The distorted selfie wide-angleness gave it a certain punch that my own pictures probably wont have. But the image felt unsophisticated, raw. Maybe I was just feeling out of the loop, out of control. But it really wasn’t bad.

So this made me wonder exactly what it is that I do when I’m being a photographer and how much of that I should actually get the credit for.

I have heard wedding photographers talking of the frustration of going to great lengths to set up group shots with props and lights and sunsets just to have uncle Bob pop his head over the photographer’s shoulder at the last minute and capture the ‘perfect’ moment, I have even read about Uncle Bob then publishing that shot in a Wedding photography magazine with his own name on it! So its a problem that a lot of photographers have been worrying about for a long time.

But my little moment of angst caused by a friend’s very well meaning selfie is nothing compared to the trials (literally) and tribulation of the wildlife photographer David Slater.

He was in Sulawesi in 2011, photographing the superbly photogenic Celebes Crested macaque, when he realized that they were being so inquisitive of his camera and their reflection in the lens (probably the first time they had ever seen it) that they were pressing all the buttons including the shutter.  So he set the autofocus, flash and exposure so that when they pressed the shutter themselves, he…they…he…got perfect and hilarious portraits.

Monkey takes selfie

The famous selfie by David Slater. (Does this this technically make David Slater a crested macaque?)

So who owns those portraits? Who owns the copyright? This, you would think, is much less of a dilemma. A wildlife photographer goes to all the effort to lug his equipment into a jungle, using his experience as a photographer and his knowledge of primate behavior to be able to capture, by whatever suitable technique, a great series of shots that is then edited, by him, down to two or three perfect images. They belong to him right?

Well, that hasn’t stopped Wikimedia Commons from using his images, stating that because American law cannot grant copyright to a non-human, and the pictures are technically selfies taken by a monkey, then Slater cannot own the copyright to the images. So they can use them, and so can everyone else, for free. The ridiculousness doesn’t stop there either. In September 2015 PETA (they do some great things but guys…please!) decided to sue David by claiming that the monkey should be granted copyright as she took the photo and therefore all the proceeds from the image should be granted to her!

I have worked with monkeys in both a photographic and conservational capacity and I have noticed that they often take a great interest in photography, in photographers and their equipment, but my observations to date are:

Monkeys think that their own reflections are cool.

and

Camera equipment is chewy and crunchy.

Guenon closeup 1smallWM
Here’s one of my own monkey pictures. A mona Guenon (not a selfie…although I am expecting to hear from this little guy’s lawyer any day now…)

So I was pleased to hear that in January of this year, PETA lost their court case, but then saddened to hear that this month they have launched an appeal…

The macaques are endangered so do need help, but not by a ridiculous law suit that trivializes their situation and steals the income from a photographer who has probably done as much to help bring their plight to the attention of the world than anyone on the planet.

So here is a link if you want to know more about them and an organization who is trying to help them: Selamatkan Yaki .And here is the link to David Slater’s page explaining how he…she…they… got that shot: David Slater’s website.

It seems as though the UK law is a bit more reasonable. Its vague but its something to do with copyright belonging to the person who came up with the idea and set up the scene and the lighting and took the picture. It talks about being aware or not of your place in that group. Something about being a knowing contributor in the outcome of the idea and knowing, right from the start, what your place in that group of creatives is; assistant, model, subject, artist, photographer. So an assistant who presses the shutter on behalf of the photographer while the photographer is holding a reflector just where he wants it, for example, knows that he is just assisting, and can’t claim the copyright later. The monkeys didn’t even know they had taken a picture. So shouldn’t be able to claim anything in court. (Did I just write that?) So as a photographer, it seems important, if you are worried, to make sure everyone involved is clear about what their role in the creation of the image actually is, right from the start. And the next time you are about to snap a pic of your puppy doing something adorable for Facebook, just make sure his little paws are well away from that shutter.

So I don’t know what any of this has taught me. I don’t think I can sue my friend for taking a picture that was nearly as good as mine, I don’t think she can claim credit for it either. But I was thinking, maybe I should set up a service where I light a space beautifully, designed specifically for each individual, and then leave them alone for an hour to do their own über-selfies?..

 

 

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3 Comments Add yours

  1. David Fitz-Gerald says:

    Interesting piece Pete. I think a lot of the laws, or rather lack of them, regarding photography mean that in most situations people can freely take pictures and claim ownership of the images. The problems that arise are usually moral rather than legal and if money is involved then it is up to a civil court to settle the dispute.

    In the case of your friend in the studio, unless she knew that she was causing angst and I suspect that she didn’t, then there is nothing wrong with what she did, unless you had previously told her that she may not take her own photographs. If you did tell her she couldn’t take photos and she did it anyway then you would have a good case to have her photos removed wherever she publishes them, or to sue for the proceeds if she profits, she also wouldn’t be a very good friend. By contrast any decent photographer or artist would immediately realise the implications of taking their own pictures and would either ask permission or simply not do it because they would understand the that the real value of the lighting goes beyond the cost of the equipment and the electricity and is something personal to the guy who planned it and set it up.

    Regarding the monkey, it is preposterous to imagine that a monkey has any human rights at all never mind intellectual copyright – it has monkey rights! If it is considered to be owned i.e. somebodies possession then it is not quite so clear cut as the owner could clearly sell its paintings or half chewed bananas for their own personal profit. If the monkey is not owned then I think we should wait until it is able to either represent itself in court or to instruct a solicitor on its behalf and hear what it has to say about its actions and intentions on that day.

    My overall view is that the vagaries and indeed general absence of photography laws work to the advantage of the photographer in most cases. It gives us a free reign to do and to get away with what we can in most cases. When it comes to studio sessions and other situations where you have made a big investment then it is down to the individual to assess the risk and take adequate precautions when necessary.

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    1. petesherrard says:

      All good points David. I can imagine the selfie problem getting worse over the next few years as it gets easier to upload things instantly. I’m this case with me and my friend, no harm was done as she completely understood my point of view and I did, as I said, even get a credit! I agree about monkeys not getting human rights because they are not human, as long as their own monkey-rights are totally looking after their own interests and not just serving us humans. I am completely for the idea of all primates having the same rights, whether that’s human or non-human and I think that will come sooner than we realise. And their rights should be the same whether they are ‘owned’ by a human or not. But they did not take those pictures knowingly, and shouldn’t get the credit for doing so in my opinion. I can see what PETA was doing, and they have their heart in the right place, but this wasn’t the right way to do it.

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