Copyright authorship and the curious case of "monkey selfies"

I almost titled this post: "Monkey selfies" prompt new editions of law school textbooks, profit projections soar.

The latest hot IP story is about the copyright status of “monkey selfies” - which are, as the name implies, self-portrait photographs shot by monkeys.

I’m a sucker for a good copyright law head-scratcher, so here’s an overview of the situation and my take on it, as a lawyer and a photographer who’s not involved.

Spoilers:

I’m casting my vote for the photographer, though not for the reasons he states. To explain my reasoning will take a page or two of explanation, because this is really more complicated than either side would have it seem.

The back story:

UK-based professional photographer David Slater traveled to Indonesia to photograph wildlife. While he was setting up a shoot of some crested black macaque monkeys, one of the monkeys used his camera to take more than 100 photos, which included a couple of very marketable selfies.

Some details are unclear. In one version of the story, Slater was setting up for the shoot when the monkey, acting on its own (and surprising Slater), picked up the camera and started shooting. In another version, Slater was trying to get the monkeys to take selfies by first spending days befriending the simian locals, then setting up the camera and enticing them to play with the shutter release.

The photos were published, in print and online, with Slater’s permission, back in 2011 and 2012.

The controversy:

A Wikipedia user uploaded two of the monkey-taken shots to Wikimedia Commons, an open-source sharing site affiliated with Wikipedia. As I write this, the images can be seen there at the Macaque page. Wikimedia believes that there is no copyright violation. In the words of the image caption:

This file is in the public domain, because as the work of a non-human animal, it has no human author in whom copyright is vested.

Wikimedia has a simple argument: The monkey pressed the shutter button, therefore the monkey is the photographer. A nonhuman can’t be an author, therefore no copyright was created when the photo was shot, therefore it is public domain and they can use it freely.

Slater disagrees with this assessment. He says that he’s been trying to get Wikimedia to remove the image, but failed. Recently he’s gone public with his complaint, and has told the British media that he’s registered copyrights to the images in the US, has a US lawyer and may sue Wikimedia in the US. He has argued that Wikimedia’s theory is untested, and their actions have damaged his ability to generate income from his investment in camera gear and travel.

The law:

Note: The following is not “legal advice”. It’s just an overview for educational purposes only. Laws vary by state, province and country. If you have a specific concern or legal matter, please discuss it with a lawyer licensed in your jurisdiction. Although Slater is British, I am using US law here because indications are that he is planning a lawsuit in US federal court.

This controversy centers on the creation of a copyright. Two key points:

1. A copyright is created when an author creates an original work.
2. The initial owner of the copyright is the author.

The problem with Slater’s argument:

Simply put, a theory that copyright is vested in the person who can profit from a work doesn’t hold water. Although one of the aims of copyright law, and intellectual property law in general, is to reward investment in creating works (and inventions, and brand recognition, etc.) that is not the end of the discussion. To receive copyright rights, one must author a work. Slater must argue that he is an author of the photos.

The problem with Wikimedia’s argument:

Wikipedia incorrectly assumes that there is only one possible “author” of a photograph, and that’s the photographer, which is to say the person who presses the shutter button. No human shutter-presser, no author, therefore no copyright.

But that’s not what the law says. The law does not grant copyright only to the photographer, or to a person who accomplishes a physical act to create a work (such as pressing a shutter button). The copyright statute - the law as written by Congress - grants a copyright to anybody who has authorship of a work (including joint authors, and even people and companies who hire others to create works for them).

Deciding whether a person who participated in the making of a work is an author is actually not a simple matter, but the courts have provided guidance.

One way that a person who did not perform the instant act of creation may be an author is by providing the “original intellectual conception” of the work. For example, a director who gives a crew storyboards and instructions on camera angles and shots to take is an author of the resulting footage, even if he does not handle a camera. See section 2 of this case, where the director was not even present at the filming. (It was a documentary on the Titanic and the director is not a submarine operator.)

By another theory, when multiple people participate in the creation of a work but one is identifiable as the “master mind” or “superintendent” (e.g. a movie’s director) that person is the author.

But even in a case where there is not such a clear relationship between creators as that of a director and a minor contributor, so as to allow one person to claim to be the author, a person who makes a creative contribution to the work can claim to be one of the authors. This is what is meant by “joint authorship”, and each joint author independently owns a share of the copyright and has the rights of an author.

It’s in the details:

So here it is important to distinguish between the differing versions of the story of the photographs’ creation:

1. If the monkey picked up the camera off the ground and started snapping, Slater can’t claim to have made the original conception of the photo, or to have been the mastermind of the work. In this case, Wikimedia is correct: the monkey is the author, but copyright can’t vest in a nonhuman animal, so there is no copyright and the photo is in the public domain.
2. If Slater set the scene and prompted the monkey with the intent that it would take the photo, he could make a good argument that he did make the original conception of the work, or was the mastermind, and therefore is the author and owns the copyright.
3. But even if Slater’s work is not sufficient to make him the author, by conceiving the monkey selfie concept and setting up the scene he is probably an author, along with the monkey. This will have the effect he desires, because the monkey can’t get a share Slater’s joint author share will be the only one and he will have full ownership.

My prediction:

If Slater goes to court and tells the same story he tells in this video, Wikimedia will be in the unenviable position of trying to prove him wrong without any evidence to the contrary. My prediction: they would fail, and the outcome would be either 2 or 3. Of course, this assumes he actually goes to court, but he’s already stated that he will if he doesn’t get the resolution he’s looking for and I have no reason not to believe him.

My prediction is that, one way or another - by settlement or court ruling - Slater comes out on top.

Contract outline for interiors projects

Note: This is not a complete contract in any way, just a broad and rough outline. I wrote it for somebody in Massachusetts, and the requirements will vary by state, country and project, so please speak with an attorney in your area if you need a contract for design work.

If you have any questions on this subject, or if you are in Massachusetts and need a contract for design services, please contact the author at Andrew@AndrewLynnLaw.com.

One of the services that I provide to architect and designer clients is contracts customized for the needs of a firm or project. A well written contract is essential because it sets up the scope and timeline of a project, manages the expectations of the designer and the client and gives you the rights of the parties and the procedures they will follow when something goes wrong.

A fellow lawyer recently asked me for an outline of a contract between a home owner and an interior designer. Here is what I wrote.

1. General: Describe the project, the participants in the project and the parties to this particular contract. Include normal contract-for-services language, such as choice of law, arbitration, termination, modification, complete integration.
2. Scope of Services: Describes generally the services that the designer will perform, and what services would be considered additional services. Additional services are work that is triggered by client requests or unforeseen circumstances and that is billed separately.
3. Project Phases: Lists the project phases: Design phases such as pre-design, design development, contract drawings; construction supervision; project close-out; and there may be others depending on the complexity of the work. Includes the services to be performed during each phase - in more detail than the general Scope of Services section - and expected dates of completion. There should also be a discussion of the completion of each stage: presentation of the deliverables to the client, and how much time the client has to approve the work or request changes.
4. Owner’s Responsibilities: What does the designer require of the owner? E.g., drawings to be provided, permit applications to be completed, access to the property, timely approval of design options.
5. Compensation: What will the designer be paid, and at what times? If additional services are requested, what is the compensation?
6. Delays: Describes the effects of delays. Delays caused by the client, by the designer, by the contractor, and by unforeseen circumstances will each be handled differently.
7. Estimates: If the designer is providing cost estimates, at what points in the project cycle will they be given, and how reliable will they be? Language should be appropriate to your jurisdiction and give the limits of the designer's liability for missed estimates if needed.
8. Intellectual Property License: Make a clear statement of which party will own the intellectual property, including copyright in the drawings. By default, copyright ownership goes to the creator, which is usually the design firm. The non-rights-owning parties (e.g. the building owner) will need a license for use of the drawings to build the project. Include limitations on those licenses, such as limiting their use to this project only. If building information modeling (BIM) technology will be used, include a BIM protocol section that makes it clear whether the BIM model will be available to the client and contractors. If it will be, and this is your first time writing a contract with BIM provisions, be aware that this is potentially a very complex matter and ask somebody with knowledge in the field for help.
9. “Boilerplate”: When talking with other lawyers I tend to refer to this section as something like “the usual terms in a contract for services”, which doesn’t sound interesting, but this is not to be overlooked, because the terms that go in this section define the procedures to follow when something goes wrong. Terms here include choice of law, arbitration, termination, modification, integration, nonpayment and others. This is very dependent on the law of the particular state or jurisdiction, and a good lawyer in your area who drafts contracts will know what to include.

BIM Law #3: Uses of BIM

I left off with an overview of Building Information Modeling (“BIM”) for the lawyers. This next part is of interest to more people, because the matter of what a BIM model can be used for leads in to the matter of what it may be used for, which is a very important issue for your contracts.
As always, these are just introductions and overviews, not legal advice. If you have specific questions, or need a new contract, talk with a lawyer. I am a Massachusetts attorney and I default to Massachusetts law; some of the information in my blog posts will inevitably be incorrect in other places.
BIM Used By the Design Team
I’ve heard this described as “Stage 1 BIM”: The BIM model is only for the use of the design team. The team creates the model and uses it to generate printed or PDF drawing sets, which are the deliverable.
In the least BIM-coordinated version, the architect develops the BIM model uses it to create PDF drawings and two-dimensional CAD underlays, and transmits those to the consultants (the engineers, interior/landscape/lighting designers, cost estimators, etc.) The consultants use those files in combination with their software of choice to produce their parts of the drawing sets, which they transmit back to the architect as more 2D drawings. Coordination between the disciplines is done in 2D, on paper, and whatever changes result are made by each discipline.
In the more coordinated version, the architect and the consultants use compatible BIM software packages - for example, Revit Architecture, Revit Structure, and Revit MEP (which are now a single product with different interface options). The architect creates a main building BIM model and transmits it to the other team members, with updates provided on a schedule, and each team member can build on the model, for example by adding structural elements, ducts, plumbing or lighting, to data sets that can be maintained separately but loaded and viewed along with the main building model.
More Coordination = More Uses + More Complications
By extending the use of the BIM model to the consultants, the design team can improve coordination between the disciplines, and can more quickly and thoroughly check for conflicts between building elements. For example, it is easier to see where a duct does not fit between a beam and a recessed light when the duct, the beam and the light are all in the same 3D model. When each of these components is modeled with a certain degree of dimensional accuracy, some software packages will automatically detect such conflicts and display them to the designers. Drawings can be generated showing the different elements in relation to one another, and lists of all included building components can quickly be produced for cost estimating.
With this power comes the need for new coordination between the disciplines, and new contract language. This is where the BIM Protocol comes in. A BIM Protocol is a formal description of the obligations of each team member in creating the BIM model:

• What components each team member will produce, to what degree of detail and on what schedule.
• What team member maintains the file repository and in what form.
• The schedule of model file updates and coordination meetings.
• Copyright licenses governing use of various team members’ BIM models by the other members.
• Assignment and limitations of liability.
• Identity of the BIM manager, who is responsible for coordinating the BIM project across disciplines.

There will be more on BIM Protocols in a future blog post on BIM contracts.
BIM Deliverables
Currently many or most design teams that use BIM models use their BIM software to generate 2D drawing sets, which are the client’s deliverable. The client and contractors only have access to the drawing sets, not to the BIM model itself.
Many contractors now use BIM models in their process, in systems that improve coordination and scheduling and monitor progress between trades. Some contractors, when provided only paper drawings, proceed to generate BIM models from the drawings or contract with drafting companies to have models produced. Later, when the building is complete and occupied, the owner’s facilities manager might use a BIM file as part of a system for monitoring building performance and diagnosing building systems problems.
Logically, the next level of BIM use is the BIM deliverable. When the design team provides a BIM model to the contractor and owner, they save the work of making a new BIM model and opportunities for translation errors are reduced. But BIM deliverables require a further elaboration of the BIM Protocol, and very clear contracts that set the expectations for BIM model accuracy and completeness and govern the permitted uses of the model by each party.
In my next BIM Law post I will discuss BIM contracts and the array of expectations they must manage.

Are Buildings Copyrighted?

Most architects know that their drawings are protected by copyright. That’s sometimes the basis of contract sticking points (“Who owns the drawings?”) and the more tech-savvy know that limited copyright licenses can be used to limit the uses of BIM files by owners and contractors both as a method of retaining control over the process and as a limitation on the architect’s liability.
What gets less press - and this is true even in law school copyright classes, where the topic is only mentioned but not explored - is that buildings themselves enjoy a form of copyright protection.

Please note: This article applies in the US only. Other countries have different copyright laws. This is not legal advice, just a broad overview. If you need help with a legal question, contact a lawyer in your area.

History

Before the United States joined the Berne Convention (the international agreement on copyright protection, enacted in 1886 and joined by the US in 1988) there was no building copyright in the US except for purely ornamental works - structures that were sculpture only. The federal law that formally added copyright protection for other buildings was not enacted until 1990, and any buildings substantially completed or published before December 1, 1990, are not protected.

What Buildings Are Protected

Copyright protection now applies to buildings newer than December 1, 1990, that are capable of human occupation (e.g., houses, office buildings, even gazebos, but not monuments that lack roofs). Mobile structures - mobile homes, RVs, boats - are not protected by architectural works copyright, though they may have other forms of intellectual property protection. Modular structures assembled on-site can be protected.

What Features Are Protected

Copyright protection on buildings applies to those aspects of the design that are form, not function. In any design context, separating the two is difficult; if I ever write an extended article on the subject it will have to quote from Huxtable and Banham, feature interviews with theory professors and be unreadable by anybody without at least an M.Arch. The Congressional committee report references Michael Graves’ dichotomy between “internal” and “poetic” architectural languages. The internal is “determined by pragmatic, constructional, and technical requirements,” while the poetic is “responsive to issues external to the building, and incorporates the three-dimensional expression of the myths and rituals of society.” The report states that the intent of the law is protect the poetic language only.

In real-world terms, therefore, design decisions made for practical reasons are less likely to result in copyright protection than those made for aesthetic, cultural or dareI say whimsical reasons. (Yes, I admit, I have made design decisions for purely whimsical reasons.)

While “standard” features - e.g. a window from a catalog, a common wall assembly or a rectangular panel of fiber-cement board - are not copyrightable, creative combinations, configurations and combinations of otherwise standard items are.

What Is Infringement

A building can be accused of infringing another building’s copyright in the same ways that any other work can infringe, though most obvious and common would be actual copying or “substantial similarity” copying. The line between inspiration and copying can be fine and difficult to place.

In one famous case - which never made it to court and so never produced a legal precedent - recent architecture school graduate Thomas Shine accused architect David Childs of making the New York Freedom Tower a “substantially similar” copy of Shine’s student project. Had the case gone to court, Shine would have had to prove that Childs’ design was so similar that copying should be inferred, and that Childs had access to Shine’s design. The latter part could be proven by showing that Childs was a member of the jury that evaluated Shine’s project and that Childs had commented on the project. Childs responded that the similar elements were really industry standard and that the design was informed by the site and other unique factors.

The line between inspiration and copying is a distinction that would make many architects rightfully uncomfortable, because the practice of drawing on “precedent” studies is time-honored tradition in architecture, and perhaps this - together with the relative newness of architecture copyright - contributes to the relative scarcity of architectural copyright disputes, compared with more litigious fields such as software and music.

What Else Should I Know?

Too much to write here! It took me three law school classes and two co-op placements in the field to get a handle on copyright law. I’ll write more along these lines in upcoming posts continuing my discussion of BIM and the law and maybe one relating the recent Oracle v. Google case to architecture copyrights, but if you have any questions please email me at Andrew@AndrewLynnLaw.com.