There’s a lot of talk this week (nice haranguing article in El Reg) about the unfortunate photographer, David Slater, who got a black macaque to take a great picture of itself a few years ago, and how Wikipedia editors can’t agree that the photo should be copyrighted to Slater, since it was actually taken by the macaque.
The tension in the story lies in the fact that Slater takes a lot of pictures but makes money off of relatively few of them. If you’ve used a camera since about 2001, you know what this is like: since the death of film we all can take zillions of pictures and some of them come out great. Slater tries harder and is making a career of it. He claims that the fact his most popular picture is being treated as a public resource is costing him tens of thousands of pounds annually.
For the record, I believe the courts in the US would agree that Slater holds a copyright on this picture. The macaque pressed the button to open the shutter, but there was significant new creativity and work involved, on Slater’s part, that led to the creation of the image. And I believe that the Wikipedia editors arguing that the macaque holds the copyright, or that nobody does, are either unqualified to comment, or are cynically exploiting a rhetorical position in the effort to keep certain popular content on Wikipedia.
On the other hand, I would argue that all of that is barely relevant to the question of the value and proper payment to Slater of any money owed him. What’s relevant is that he could (if he actually doesn’t already) make a lot of money on the picture, partly as a result of how we’re all treating it as a freely-shareable resource. Why? Because the only entities that pay for the rights to reuse images now will still pay, regardless of the common expectation that the image can be used for free.
Let me explain how this works. I saw it in operation, almost daily, at Brooklyn Museum and at The Metropolitan Museum of Art. For the kinds of places that make a practice of paying for image rights, it is cheaper to pay for those rights than to even consider the question of whether the image can be used for free. When you have an image licensing department, and a counsel’s office, you’ll spend way more time and money understanding image rights policies and acting upon them then you will just licensing an image. Take Brooklyn Museum’s copyright statement, for example, which is completely concise and clear. It still leaves responsibility for understanding copyright of each artwork image on the site with the user. Do you want to ask your counsel’s office to investigate the copyright status of an image when Brooklyn Museum itself doesn’t know its status? Or will you just pay to use it?
I feel for Slater, who just wants to go out and take great pictures. But there are image licensing services he can pay for that will go out for him and get him those tens of thousands of pounds. Nothing about the image being on Wikipedia changes that … in fact, for any entity that sometimes does pay for image rights, the debate on Wikipedia makes it more clear that the copyright of this image is either in dispute or belongs to the photographer. In either case, the business approach is to pay for the reuse rights.