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Who Owns a Selfie Taken by a Monkey? [e83]

Nasir and Matt debate about whether a monkey can own a copyright to a photo and answer, “There has been a lot of chatter with my employees. Can I ban gossip in the office?”

Transcript:

NASIR: Welcome to Legally Sound Smart Business. This is Nasir Pasha…
And this is Matt Staub.
MATT: And this is Matt Staub.
NASIR: Oh, nice. And welcome to the business legal podcast where we cover business in the news and also answer some of your business legal questions that you, the listener, can send in at ask@legallysoundsmartbusiness.com.
MATT: Our video has a little bit of a delay so you can’t see when I’m talking. I know you were trying to time that so you said it at the same time but I got you on that one.
NASIR: Even if I was a little off, we’ll have Chris line it up perfectly.
MATT: Yeah. Now I’m concerned about the Friday episode because I feel like you’re going to see me. Actually, I’ve got something in mind. We’ll figure this out. But enough monkey business here because we have a story to talk about – about monkeys.
NASIR: Enough monkeys now.
MATT: Actually, I didn’t realize, I’d heard this story in the last couple of weeks but I didn’t realize that this was so long ago – well, not so long ago. 2011 was when this actually happened and what happened was I don’t know all the details but basically they were at (I would assume) a zoo or some sort of something like that. Basically, a monkey somehow got hold of a photographer’s camera and just took a ton of pictures. One of them was a pretty funny selfie of the money that the monkey took that I guess only recently went viral – probably because selfies have become popular this year so maybe that’s what it is.
NASIR: Yeah.
MATT: Anyways, someone went up on Wikipedia – I don’t know on what page – and the photographer said, “Hey, you’re infringing on my copyright. I have a copyright on this photo. You need to take it down.” Wikipedia’s response was, “Well, you don’t own the image” or “You don’t have a copyright on it so we’re not going to take it down.” It raises a couple of interesting questions. I guess the first one is, “Can this monkey actually have a copyright of the photo?” and we’re going to answer that – that it’s no – but, since that’s the case, who actually owns, who has the copyright to this photo?
NASIR: I feel like we talked about… wasn’t it the selfie at the Oscars we talked about?
MATT: Yeah.
NASIR: Who owned the copyright for that?
MATT: Yeah.
NASIR: I don’t remember who took it. Do you remember who took the photo at the Oscars?
MATT: Bradley Cooper, right?
NASIR: Oh, yeah. Yeah, Bradley Cooper. So, it was well-established that, even though it was Ellen’s camera – a Samsung Galaxy S – was it S4 at the time?
MATT: I don’t know.
NASIR: This little plug-in, I’m sponsored by them, by the way, just so you know. We established that Bradley Cooper, as the photographer himself, was the one that owned the copyright to the image even though it was Ellen’s camera, even though it was maybe she’s the one that published it. So, this makes it interesting. Can a monkey own a copyright? Obviously not. But CNN actually goes through a nice little legal analysis to whether or not it’s possible that at least the camera owner owns the copyright and I started thinking about this because, okay, forget about it that it was an animal that actually took the photo, if I set a camera out to take a landscape photo and have it take a picture every five seconds or ten seconds or whatever – like, a time lapse or whatever – then I would obviously own the copyright. Even though a lot of people are saying, “Okay, well, this needs to go to court in order to actually determine because it’s kind of a sketchy area,” I can see an argument being made in proponents of the camera owner that it’s something similar. Like, if I left a camera in a certain position where let’s say that it only goes off if the animal goes by or there’s a motion detector, right? Does that mean that the animal is the one that actually took the picture? Well, not really because I caused that to happen. Same thing – if I hand a camera to a monkey that has ability to press the buttons and take a picture, all of a sudden I lose my copyright for that? I don’t know.
MATT: Oh, yeah. I mean, that’s a good question. But I think the difference for that in here is the monkey actually took it so it’s not anything that this guy specifically did it himself.
NASIR: Yeah, he didn’t intend to do it, right?
MATT: Yeah, and I guess this was just randomly in the forest. I don’t know why I assumed this was the zoo because there are pictures of him just hanging out with these monkeys which seems dangerous.
NASIR: For example, if I drop a camera and it takes a picture because it hit the ground, I’m not going to say that the ground can’t hold a copyright. So, therefore, no one owns the copyright. To me, it’s similar. I mean, there’s obviously a difference between an inanimate object and an animal. But, if we’re saying that an animal doesn’t own a copyright, then, I mean, someone has to, right? It’s a photograph.
Well, I guess, in theory, what Wikipedia is saying is that no one owns the copyright. I guess that’s an answer, too.
MATT: Yeah, and that’s their stance. But, if you took the photo and altered it and turned it into some sort of his own work, then I think he could get a copyright on that, just in this instance.
NASIR: That’s a good point, too. The fact that he actually published it and sized the image and produced it and so forth though that typically doesn’t create a copyright in the image, it’s a derivative work, but a derivative work can be also have its own copyright as well. I think there’s something there. I think that we’ve got to figure out how to follow-up with these stories because I really bet you that, maybe not now, it’ll be a while from now but this is somehow going to be resolved in the favor of the owner of the camera.
MATT: Yeah, and just to follow-up what you were saying – the work must have an author. The origin has to be a human being so materials produced solely by nature, plants, or animals are not copyrightable. So, I guess the origin, if you dropped it, it hit the ground, I guess the origin would be from you.
NASIR: I think the origin would be still from the human being, I still think. The thing is I don’t think it matters whether it’s intentional or unintentional. Forget about the ground, if I accidentally take a picture, that’s still my copyright. I don’t think there’s any arguing with that.
MATT: I’ll tell you what. If you take a picture, if your camera hits the ground and it’s an amazing picture that someone’s trying to infringe upon, why don’t we address that when it happens because I guess I was thinking about the logistics of this just now. Like, I don’t know how a good picture could be produced from you dropping a camera and it hitting the ground.
NASIR: I don’t know.
MATT: If you threw it against the wall maybe and it hit the…
NASIR: I really bet you that some of the best journalistic pictures in the world have had its origins in some kind of accident of some sort. I mean, frankly, a lot of those photos are you have to position yourself and timing and so forth, but there’s a lot of luck involved with some of those photos when it comes to capturing wildlife or some news event and so forth.
MATT: Yeah, I think the photo of all those workers suspended high up on that beam from the black and white photo that I’m sure everyone’s seen.
NASIR: Yeah.
MATT: I think that camera was freefalling. Somehow, they brought a camera back that was small, back in time, it was freefalling and it landed against another beam and took that photo.
NASIR: I don’t know. I thought it was a monkey.
MATT: A monkey? Yeah. Or that.
NASIR: That’s what I read and that’s why you can copy it without any kind of problem. Don’t quote me on that.
MATT: Yeah, I wonder what the most famous photo is.
NASIR: Taken by a monkey?
MATT: Yeah.
NASIR: I’m sure TIME Magazine would have an opinion on that.
MATT: Yeah, I’m looking at some famous photos right now, that’s why I was wondering. The picture I was describing was called “Lunch Atop a Skyscraper, 1932, New York Construction.”
NASIR: Wow.
MATT: 69th floor.
NASIR: It’s funny how just you mentioning it, everyone can picture that photo and that’s how memorable it is.
MATT: Yeah.
NASIR: And yet, it’s such a simple photo.
[MUSIC]
NASIR: Question of the day.
MATT: Not dealing with monkeys, I don’t think.
NASIR: Monkey-less.
MATT: More monkey business, I suppose.
“There has been a lot of chatter with my employees. Can I ban gossip in the office?”
NASIR: Good question! I hate gossiping. I think it really can bring a company down from the inside, truly. I mean, once it starts, it’s definitely a good point.
MATT: I mean, generally speaking, you can discipline your employees – within reason, obviously, for things they do. This person here asks if they can ban gossip. I guess the key thing is, if you have some sort of policy, it just can’t be overly broad, I suppose. Is that how you would put it?
NASIR: Yeah, and I think the main reason is the National Labor Board has actually ruled on this issue and what they’re trying to prevent and a rule like saying that you can’t gossip – very simple or “Gossip is not tolerated” – the problem with that is it could be infringing upon protected activity. For example, when it comes to unionizing or when it comes to complaining about let’s say you’re gossiping about the fact that the office or the place of employment is unsafe or there’s some labor law violation and so forth. These are all protected activities and so I think making it too broad becomes a problem. Even, for example, statements like negative comments about your fellow team members and other aspects like negativity or gossip may be even still too broad.
MATT: Yeah.
NASIR: So, restricting that on an official capacity is I think very difficult to do. I think the National Labor Board has gone a little bit overboard, so to speak, on excluding these kinds of things, but that’s the concept that they’re trying to protect.
MATT: You’re saying they’ve gone overboard on deciding what is overboard. I like how you…
NASIR: As the National Labor Board went overboard.
MATT: I agree because some of the things that they’re saying is too broad. Like you said, negative comments about our fellow team members, discourteous or inappropriate attitude or behavior, blah blah blah. This doesn’t seem like it’s too broad. Gossip is not tolerated that the company employees that participate in or instigate gossip about the company employer or customer will receive disciplinary action. This seems fine to me. I think the key is too, if you have an employee that you want to terminate just because they’re gossiping, they’re probably many more things you can find about them that’s grounds for termination.
NASIR: I haven’t run into the specific issue of having a client want something like this but, if they did, I think there’s probably a way – again, this isn’t legal advice but this is just kind of me theorizing here – there’s probably a way to do it and make it these same broad statements but then give some exceptions that in no way can this restriction be construed to limit the employees’ rights to do X, Y, and Z – for example, discussing unionization and so forth – and build that kind of exception. But here’s another thing. To me, gossip is just not about talking about negative things. it’s about talking about negative things behind people’s back. That’s my definition of gossip. Having a little bit more transparent and openness of anything that may be going on in the office is much more important than setting some policy that people may or may not follow.
MATT: You do hate gossip. You’re right.
NASIR: It’s my nemesis.
MATT: I think there’s some sort of show I believe that was gossip…
NASIR: Gossip Girl?
MATT: Gossip Girl? That’s a show, right?
NASIR: Yeah, that was your favorite show. You know, you don’t have to play coy with everyone. No one will mind.
MATT: I can’t say I’ve ever seen it but maybe I’ll watch it.
NASIR: Neither have I.
MATT: I’ll watch it between now and when this episode comes out so I’ll have plenty to talk about.
NASIR: I honestly don’t think it’s even around anymore but I could be wrong.
MATT: Gossip Girl. If you know, let us know because I don’t want to look it up.
NASIR: I’m too lazy to Google it right now.
MATT: 2007 through 2012, okay. Yeah, it’s done.
NASIR: See? Apparently, other people hated Gossip Girl, too. I’m not the only one.
MATT: Blake Lively, that’s a pretty big lead, I guess. That’s a pretty big name. All right. Well, enough of this – enough gossip and monkeys.
NASIR: All right. Well, thanks for joining us everyone and don’t forget to leave some fun, great reviews on iTunes and other channels that we may have.
MATT: No gossip, though.
NASIR: Yeah, please, no gossip. All right, thanks for joining us.
MATT: Keep it sound and keep it smart.

Nasir Pasha & Matt Staub

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