Most of my friends are amateur photographers now, thanks to smartphones and Instagram. And many of them love the hashtag #NoFilter, which always amuses me. Why? Because of the assumption that a photo shot with an iPhone has not already been heavily curated before the button was pushed by the photographer. As this past spring's blue/black vs. white/gold dress debate that raged on the Internet demonstrates, we don't each see color the same way, and a phone's camera does not faithfully replicate the colors we do see, filter or not. Furthermore, we take for granted that phone lenses are super wide-angle, sensors have a certain level of sensitivity, and the size and weight of the phone itself often affect the outcome of the final photograph. In other words, so much of the artistic decision-making was done before the picture was taken.
In fact, I think it could be reasonably argued that, in an age in which we no longer rely on costly film negative, time-intensive film development, or limited hard drive space, the creative act occurs as often before and after a photograph is taken as the moment the photograph is taken. Choosing, enhancing, cropping, displaying, and distributing a photo involves a substantial amount of creativity. This seems like minor quibbling, but it's illustrated by the photography story that won't die--the Monkey Selfie story--which demonstrates that the U.S. Copyright Office has an outdated notion of what constitutes a creative work of authorship.
A brief recap: a British professional photographer David Slater, who was shooting wildlife in Indonesia, left his cameras alone with a group of macaque monkeys. One of them took a bunch of shots, and a few came out great. He shared the photos with the world, and, a couple of years later, the Wikimedia Foundation republished the photos without the photographer's permission. Wikimedia claimed they were in the public domain because Slater didn't actually take them. A little while later, the U.S. Copyright Office stated that it will not register a photograph “...produced by nature, animals or plants. Likewise, the Office cannot register a work purportedly created by divine or supernatural beings.” Because U.S. Copyright is based on notions of authorship from the time of creation, there is an inherent logic to Wikimedia's stance and the U.S. Copyright Office's declaration. But...
Technology has changed everything, and adjustments in case law (determined by rulings in lawsuits and appeals), as well as acknowledgments by the U.S. Copyright Office that creative works can be fixed in a fixed digital medium rather than an actual fixed tangible medium, should demonstrate that a photograph's copyright should be judged in its totality. I believe Slater should be granted copyright, because he set the events in motion that allowed for the creation of the photograph, then curated the photograph and distributed the photograph for human artistic consumption. And I think it is a travesty that PETA is now trying to claim copyright on behalf of the monkey who is the subject of the photograph, as if the monkey had the ability to consent to PETA's litigation on his behalf. Meanwhile, you have an "appropriation artist" who flat-out copies Instagram photographs into giant $90,000-$2M canvases with seeming impunity, hiding behind exceedingly progressive notions of fair use. This is able to happen because there is little common sense in the development of U.S. Copyright law, and certainly little fairness.Related: Etsy Liars, Instagram Thieves, and the Art of Law
On the other hand, in the world of motion picture film, it is clear that even when there is no clear control of the instrumentality of the film camera, in the absence of a contract, custom and consideration of all of the facts has dictated that a producer may claim copyright on the film over the director. In the recent 2nd Circuit case 16 Casa Duse, LLC v. Merkin, the judge wisely asks, "May a contributor to a creative work whose contributions are inseparable from, and integrated into, the work maintain a copyright interest in his or her contributions alone?" The judge found that the answer, as it pertains to motion picture film, is no: "We have never decided whether an individualʹs non‐de minimis creative contributions to a work in which copyright protection subsists, such as a film, fall within the subject matter of copyright, when the contributions are inseparable from the work and the individual is neither the sole nor a joint author of the work and is not a party to a work‐for‐hire arrangement."
The fact is, there is no evidence that the monkey did anything creative when touched that button, but there is plenty of evidence that the photographer's creative eye led to the photo's success. There is often as much pre-production and post-production involved in still photography as there is in motion picture photography, and copyright law, in my opinion, should reflect that.