Tag Archives: copyright

Can a Monkey Claim Copyright?

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A few years ago, a crested black macaque named Naruto apparently took a selfie using a wildlife photographer’s camera. The photographer, David Slater, wishing to get better close-up photos of a group of macaques in Indonesia, set up his camera on a tripod and attached a cable and button that when pressed would trigger the camera shutter. He hoped that the monkeys would be curious enough to move closer to the camera, stare at their reflection in the lens, and press the button.

In fact, the macaques were quite cooperative, especially Naruto, who snapped several selfies. One of the photos was particularly eye catching—mainly because of the self-aware and somewhat goofy expression on Naruto’s face. Slater sent the photo along with some others to his agent who shared them with various news outlets. The photo went viral.

Then something really crazy happened.

Wikipedia Claims Monkey Image Is in the Public Domain

Wikipedia, the online encyclopedia, used the photo of Naruto grinning at the camera, to illustrate an article about the Celebes crested macaque (aka crested black macaque). However, Slater is not attributed as the creator and copyright holder. Instead, the description of the photo on Wikimedia says, “Self-portrait of a female Celebes crested macaque (Macaca nigra) in North Sulawesi, Indonesia, who had picked up photographer David Slater’s camera and photographed herself with it.” Wikipedia claims that the image is in the public domain because the macaque who snapped the photo is a “non-human” creator”, i.e., not a legal person.

Slater, on the other hand, believes that the photo resulted from his creative choices (choosing the macaque group, setting the camera on a tripod, adjusting the camera settings for the desired image, adding the remote trigger, etc.), thus making him the rightful copyright holder. Some legal experts (in the UK where Slater lives) think that his actions are more important than “the mere physical act of pressing a button” in deciding who has copyright ownership.

In spite of Slater’s objections, Wikipedia refused to take down the photo of Naruto. I’m not reproducing the photo of Naruto here because I think Slater is the rightful owner, and I don’t have permission to use it (I tried to contact him to get permission, but never got a reply). You can see the image at Slater’s website.

But there’s more to the Naruto story.

PETA Sues for Copyright Infringement

In 2015, PETA (People for the Ethical Treatment of Animals) entered the fray by suing Slater for copyright infringement in a California court on behalf of Naruto. PETA’s claim was that the photo “resulted from a series of purposeful and voluntary actions by Naruto, unaided by Mr. Slater, resulting in original works of authorship not by Mr. Slater, but by Naruto”. PETA was saying, in other words, that Slater’s use of the photo of Naruto, on his website and in a book, infringed on the rights of the monkey.

The judge in the case dismissed the suit because animals do not have standing in a court of law and thus cannot sue for copyright infringement. PETA appealed. During the appeal proceedings, Slater and PETA reached a settlement (exact terms unknown). In a joint statement PETA and David Slater apparently agreed that nonhuman animals have rights. Both are concerned about animal rights, and the so-called monkey selfie potentially advances the argument that animals have certain rights. According to the PETA website, Slater agreed to donate 25% of revenues from the photo to the sanctuary where Naruto lives. On David Slater’s website, the amount stated is 10% going towards a “monkey conservation project in Sulawesi”.

In 2018, the Ninth Circuit Court of Appeals rendered an opinion upholding the previous court’s decision to dismiss claims brought by a monkey of copyright infringement. The opinion blasted PETA saying, “PETA’s real motivation in this case was to advance its own interests, not Naruto’s …”.

Works that Lack Human Authorship

What does the law say about what creative works may be copyrighted and who may claim copyright?

In the U.S., copyright law (see The Compendium of U.S. Copyright Office Practices: Chapter 300) says that to qualify as a work of authorship, it must be created by a human. In fact, the Compendium specifically mentions the monkey example in its description of “works that lack human authorship”:

“… the Copyright Act protects ‘original works of authorship.’ 17 U.S.C. § 102(a) (emphasis added). To qualify as a work of ‘authorship’ a work must be created by a human being … Works that do not satisfy this requirement are not copyrightable.

“The Office will not register works produced by nature, animals, or plants. Likewise, the Office cannot register a work purportedly created by divine or supernatural beings, although the Office may register a work where the application or the deposit copy(ies) state that the work was inspired by a divine spirit.

“Examples:

  • A photograph taken by a monkey.
  • A mural painted by an elephant.
  • A claim based on the appearance of actual animal skin.
  • A claim based on driftwood that has been shaped and smoothed by the ocean.
  • A claim based on cut marks, defects, and other qualities found in natural stone.
  • An application for a song naming the Holy Spirit as the author of the work.

“Similarly, the Office will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.”

So in the U.S. at least, an animal cannot be the author of a creative work, and the PETA suit would never have succeeded because the U.S. Copyright Office had already said that animals cannot hold copyright. But what about Wikipedia’s claim that the photo of Naruto is in the public domain?

You may be thinking at this point about situations in which the scientist videographer may find themselves challenged as the creator and copyright owner of a video. For example, wildlife camera traps are triggered by the movements of animals. Could someone claim that the resultant photo or video is the creative property of the animal or is in the public domain because the animal triggered the photo or video?

According to the U.S. copyright law, an author is “the creator of the original expression in a work” (unless the author transfers the copyright to another person or entity such as a publisher). To be copyrightable, the work must be created by a human and also reflect a “degree of creativity”, among other requirements. Thus, the monkey, a non-human, is automatically disqualified as the creator of a copyrightable work. But can the monkey be the creator of the image, i.e., the photographer?

Maybe.

The Wikipedia description of the image of Naruto says that the macaque “picked up photographer David Slater’s camera and photographed herself “. However, Slater’s description (in an interview on This American Life, Episode 631) has the camera set up on a tripod with a remote shutter trigger attached by a cable. The macaques were attracted to the trigger button, picking it up and putting it in their mouths, and eventually pressing it. The sounds of the shutter seemed to further attract the macaques attention and caused them to look into the camera lens. In other words, the monkey did not pick up the camera, look into the lens, smile, and snap the picture. Also, in this case, it’s clear that a human created the conditions whereby the photo was taken. So at a minimum, a human was involved in capturing the image and, I would argue, was the participant wholly responsible for the creative aspect of the photo. The macaque merely participated by mugging for the camera and pressing the button that triggered the shot.

Part of the confusion surrounding the monkey photo is because of its designation as a “selfie”, which implies that the monkey knew it was snapping a photo of itself. Although the macaques may have recognized themselves in their reflections in the camera lens, they were likely unaware that their image was being recorded or that pressing a button caused that recording. That is true of any audiovisual recording of nonhuman animals. A good example is a photo or video captured by a camera trap in which a motion-activated camera is positioned by a human to capture images of animals in a particular location during a particular period of time. The movement of animals triggers the camera to record images, but the animals are unaware of what’s happening. Human action is also necessary to download and process the resultant film. No one could reasonably argue that animals recorded in this way were the photographers. Wikipedia seems to agree, since their entry on camera traps features several examples of camera trap images, all of which are attributed to human photographers who were not even present at the time the images were recorded.

The images captured by Slater’s camera setup in Indonesia are analogous to images taken with camera traps. The macaques triggered Slater’s camera by playing with the button he installed but were unaware that their actions caused a visual recording. And unlike the situation with camera traps, Slater was present and interacting with the subjects of his photography as well as with the camera (to adjust settings).

The question that remains unanswered is whether actions by a human photographer to plan and set up a shot legally qualifies them as the author of the resultant photo, even if the recording is triggered by the animal’s actions.

Using Screenshots and Published Figures in a Video

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I’ve previously talked about how to make a video when you have only photographs or when your topic is not very visual. Using still images instead of film footage is sometimes the best option for many scientists who just have photographs to work with or who find shooting video footage too challenging or time consuming. In addition to photographs, a science video may contain figures from a published paper or book or a screenshot (still image of a computer screen) of material on a website. In this post, I offer a few thoughts about using such images in a video.

Screenshots

Some video creators use screenshots to show the viewer how to use an app or how to use an interactive tool on a website. The screenshot approach is less challenging and does not require additional software that would be needed to capture video footage of the computer screen. All you need to know is how to capture a still image of your computer screen. The exact method for screen capture varies with operating system, but usually involves a keyboard shortcut. For example, on a Mac OS, holding down the shift key, command key and 3 will prompt a screenshot of your entire screen (which is saved to the desktop). Shift + Command + 4 will allow you to draw a window to select a portion of your screen.

However, be careful about what you capture with screenshots so that you don’t infringe the copyright of online materials. For example, don’t use screenshots to copy photographs on someone’s website; instead, contact the photographer and ask permission or pay a fee. Some companies have information about use of screenshots from their website or products. Google, for example, allows free use of screenshots of a search results page for instructional or illustrative purposes—as long as nothing is altered:  https://www.google.com/permissions/products/ Unfortunately, not all companies have such clear guidance, in which case, you’ll have to seek permission. See the Stanford University Libraries website on copyright and fair use for more information about websites and copyright. Here is a website with an interactive tool to allow one to determine if material is under copyright or in the public domain (USA only): http://www.librarycopyright.net/resources/digitalslider/index.html. And here is a handy app to determine if your use is fair: https://www.newmediarights.org/fairuse/

Published Figures

Finally, you might want to use a figure from a journal article (your paper or someone else’s) in a video. Since the article is protected by copyright, you will need permission from the publisher (or other copyright holder) to reuse the figure in its published format. Academic publishers often get such requests for reusing figures in review articles and books.

Getting permission for reuse of a key portion of a published journal article may be easy or difficult. Springer Nature, for example, has a user-friendly procedure. All you need do is locate the Rights and Permissions link on the first page of the online article. Clicking it will take you to Springer’s RightsLink site where you can then enter information about what you want to reuse (e.g., the abstract or a figure) and how you plan to use it (e.g., in a conference presentation or on a website). A cost for reuse of the material is calculated, and you then register your request. I’ve previously gotten permission to use several graphs from a Nature article in a conference presentation. The process was quick and easy, and there was no charge for my particular use. All I had to do was include an attribution with each figure in my presentation.

Note that if the figure is from one of your papers, you can always present the data in a different format in your video and not need permission from the publisher. The data are still your intellectual property.

Can I Use Media Found on The Internet in My Science Video?

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In talking with colleagues and students, I find that quite a few of them are confused about intellectual property, copyright, “fair use”, and public domain. The ready access to material on the Internet has added to the confusion. So I thought I would write a series of posts on the topic.

In this first post, I will define those terms and provide some useful links to additional information. Note that I am not an expert on copyright law; if you need legal advice, please contact an attorney.

Intellectual property:

Intellectual property is any creation arising from one’s mind. Such creations may be literary or artistic works, musical works, machines or devices, software, original processes, drugs or other chemical compounds, designs or images, and datasets, to name a few. Intellectual property is protected by either a trademark or service mark (for a name brand or logo) or by copyright (for a form of expression, such as a book or video). Read more at http://www.uspto.gov and http://www.copyright.gov.

Copyright:

A copyright is a type of protection afforded to the creator(s) of “original works of authorship” (literary, artistic, musical), both published and unpublished, for a period of time, which varies by country and other variables. As soon as a work is fixed in any medium (including the Internet), it is automatically copyright protected. Copyright only protects the form that the work takes, not the subject of the work itself. Ideas, facts, concepts, principles, and discoveries cannot be copyrighted. Read more at http://www.copyright.gov.

Fair Use:

The term “fair use” refers to the limited use of another’s work without permission. It is generally used by those who create commentary, criticism, satire, review, or scholarly critiques in which small portions of the original work need to be displayed for illustrative purposes. The concept is often misunderstood and improperly applied, however. Read more at http://www.copyright.gov/fls/fl102.html. The application of fair use to video is thoroughly discussed in this video:

Public Domain:

Works in the public domain can be freely used by anyone in any manner. However, it is not always easy to determine the status of a work. In the U.S., works published before 1923 are in the public domain, but guidelines for later works are more complicated and based on several criteria (date of creation, whether published or not, lifespan of the creator, whether copyright was renewed). Works created by a U.S. Federal Government (not state or local) employee in the course of their duties are also in the public domain; however, Federal agencies may employ contractors or hire a private company—their works may not be in the public domain. Read more and find additional links at http://fairuse.stanford.edu/overview/public-domain/welcome/

Determining the true status of a work often involves quite a bit of sleuthing. Keep in mind that many works have been reposted on multiple websites, often without permission; tracking down the original content owner is your responsibility.

16 Mistakes to Avoid When Making Your First Science Video

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karen_bookshelfPicture this scenario: A scientist is nearing the end of a research project funded by NSF and is preparing the required summary report written for the public. She decides to create a short video to submit along with her written report. She’s never made a video before—only shot occasional footage with her iPhone. Undaunted, she buys an expensive camcorder and after a bit of practice in her backyard, dives into shooting. She films herself explaining the project in detail from behind her office desk. She goes through all the methods, results, and statistics, making sure to cover all the uncertainties and limitations of the research. She doesn’t bother to edit the footage, not really knowing how to do this. In any case, the clips she shot in her backyard garden look nice and add a bit of scenery to the video. The final video is 29 minutes long. Proudly, she shows it to her lab group, most of whom worked on the research project. At the end of the viewing, there is stunned silence. Then, one graduate student tentatively raises his hand and asks, “You’re not going to put this on YouTube, are you?”

Uh oh.

Novices typically make the same mistakes when they first attempt to create a video. I know because I’ve made quite a few of them myself. I see the same glaring blunders made over and over again in what are clearly first-time videos made by a scientist or science educator. However, many of these errors are easily avoided. Some simply require awareness to side-step them, while others take a bit of practice and/or the right equipment.

I came up with a list of 16 common mistakes (and how to avoid them) based on my own experience. I either made the mistake myself at some point or would have had I not been forewarned about it. I’m sharing them with you in the hopes that they will help you avoid some of the most common errors:

1. Ignore your audience. The number one mistake that you can make is to fail to identify your target audience or fail to keep them in mind when designing your video. I find that scientists too often explain their work as they would to their colleagues, even if their audience is composed of non-specialists with little or no background in the field. It never occurs to them to put themselves into their audience’s shoes.

Solution: During all phases of video production, ask yourself the following questions. Will it make sense to my viewers? Will they find it memorable, interesting, informative, and/or enjoyable? Find more information on how to keep your audience engaged here: Keep Your Audience in Mind and Are Your Science Videos Understandable by a Diverse Audience?.

2. Have no plan. Novices rush out with their cameras and just start shooting. The result? A long-winded, rambling monologue and/or poorly composed footage, which often has no bearing on the topic of the video.

Solution: Prepare a script and storyboard your shots beforehand. Write out what you want to say and also describe or sketch out the sequence of shots (storyboard) you plan to use. Don’t memorize the script, however—just use it to organize your main points and to ensure a smooth delivery. Follow your storyboard to set up your shots and also to guide you in editing.

3. Don’t tell a story. A common mistake that scientists make in a video is to string together a series of facts designed to “educate” the viewer. These facts are presented in a logical and unemotional manner—which is how we are trained to convey science information. Unfortunately, viewers, especially the general public or students, may not react well to this approach. In addition, they may not remember material presented this way.

Solution: Frame your science message in the form of a story. People love stories and will stick around to see how everything turns out. They also tend to remember stories better than bare facts. Explaining science in the form of a story also helps you, the science communicator, make a connection with the audience. A good story asks and answers a dramatic question: What motivates a scientist to study deadly viruses? How does a volcanologist collect (and carry) samples of molten lava? Why should I care about climate change? By using a story, the videographer can present science information accurately and concisely but in a way that engages the viewer.

For more information on the use of dramatic questions and storytelling in science videos, read The Dramatic Question and I’m Not Interesting, But My Research Is.

4. Use bad camera moves. Inexperienced videographers often shoot with hand-held cameras, which produces shaky or blurry footage (and no, it’s not the same as the jerky footage sometimes used by professional filmmakers). Another common mistake is sweeping the camera around erratically (“firehosing”). These problems happen when the videographer has no idea what they want to shoot (in other words, they have not planned anything and are just filming everything in the hopes of getting something useful).

Solution: Carefully plan and set up each shot and use a tripod to steady the camera.

5. Overuse zooming/panning. The controls on many modern cameras encourage novices to overuse the zoom feature, which can be annoying to viewers and also adds unnecessarily to the video length. Too much panning (swinging the camera from side to side across a scene) is also a sign of inexperience.

Solution: Zoom with your feet. Instead of using the camera to zoom in for a close-up, stop and walk closer to your subject and resume shooting. The time spent during a zoom is wasted time and does not add anything of value to your video. Use zoom and pan sparingly and only when you have a specific reason for it.

6. Backlight your subject. Another common error made during filming is to position the subject in front of a light source such as a window, which causes backlighting. The camera automatically selects the brightest light as reference and adjusts everything else accordingly. The result is to put your subject in deep shadow. Backlighting can occur outdoors as well when the sun is positioned behind the subject or is overhead, casting shadows onto the subject’s face.

Solution: Ensure that the light source is behind the camera; if necessary, use extra lamps or reflectors to light your subject. This post and video explain more about backlighting: How to Deal with Lighting Issues.

7. Fail to compose your shots properly. Many novice videographers/photographers put their subject in the center of the frame, which is less interesting to the eye.

Solution: Use the “rule of thirds” to compose shots. Most cameras have an option to show a grid in the viewfinder that divides the frame into thirds from top to bottom and left to right. Use this guide to frame your shots. Read more about this composition tip in this post: The Rule of Thirds.

8. Shoot too wide. Novice videographers (and photographers) often shoot too wide, putting their subject far from the camera lens. The result is often a poorly-composed shot in which details of the scene, the subject, or the action are difficult to see.

Solution: Wide shots are fine if you are trying to show something in perspective—otherwise position the camera close enough to your subject to capture the action and/or details, such as facial expressions. If they are gesturing or demonstrating something, then periodically use a medium shot or possibly a close-up of their hands (and whatever they are holding).

9. Tell but don’t show. Those new to video often rely on verbal descriptions and fail to show what is being described. This approach reveals a lack of imagination and is boring to the viewer.

Solution: Let visuals tell your story. Use text and verbal descriptions to augment the visual depictions—not the other way around. You are making a video, after all. For more information, read Show and Tell and What Is B-roll and Why Should I Care About It?

10. Drag it out.  Some videos seem to drag because the scenery never changes, or the story does not move forward at a good pace.

Solution: Use a variety of footage (or still images) shot in different locations or from different perspectives (close-up, medium shot, wide shot). By changing scenery or perspectives, you add visual interest and move the story forward. For more information, read Keep it Moving.

11. Feature “talking heads”. The novice videographer films long sequences of people speaking to the camera—an approach that is guaranteed to bore viewers. This effect is enhanced when the talking head is a scientist speaking in a robotic manner.

Solution: Use cutaways to other footage, images, animations, or graphics to illustrate what the speaker is describing. By giving the eye something new to look at while the speaker is explaining, you add visual interest and avoid boredom.

12. Don’t worry about the audio. Novice videographers fail to use proper microphones and often don’t pay attention to ambient noises (people talking nearby, dishes clattering, machinery droning, traffic rumbling, wind blowing) during filming.

Solution: Use a lavalier-mic (lapel microphone) to ensure a speaker’s voice is clearly heard. Also use a good quality microphone for voice overs (not the built-in computer microphone). When shooting, review often and listen to the sound with headphones or earbuds. For more information, see How to Improve the Audio of Your Videos Without Breaking the Bank.

13. Have speakers introduce themselves. Having a subject introduce themselves on camera sounds awkward and also wastes time: “Hi, I’m Dr. Hotshot, and I work on a very important subject.”

Solution: Identify people with a simple text caption that appears briefly while the speaker is talking about their topic. The person is clearly identified without adding to the length of the video.

14. Go crazy with special effects. Movie-editing applications often include a library of special video and audio effects. Novices get carried away and use dramatic transitions between clips or glowing text that zooms in and out of the frame. Overuse of fancy effects in an attempt to spruce up otherwise boring footage will fool no one—and will likely annoy the viewer.

Solution: Stick to basic transitions (cut, dissolve) and simple (and consistent) text styles. Use special effects sparingly and only if you have a specific reason to do so.

15. Make it longer than necessary. Scientists making their first video will try to cram as much information as possible into it. They also feel the need to explain every detail and uncertainty (in the interest of accuracy). By the time they finish all that hemming and hawing, the viewer has clicked away to another video.

Solution: Strip your video down to a core message and include only those elements necessary to get that message across. If you can deliver your message in three minutes, then don’t go any longer by trying to cram in more “facts”. For more on the topic, read Strive for Brevity and Can You Describe a Scientific Method in a One-Minute Video?

16. Use copyrighted material without permission. Novices often are unclear about what can and cannot be used in a video. Instead of creating original material, they download images, video, and music from the Internet to create their videos. Unfortunately, they may be guilty of copyright infringement.

Solution: Assume anything on the Internet (or fixed in any other medium) is copyright protected until evidence to the contrary is found. Just because you can download it, does not mean you are justified in using it. The best solution is to use media that you’ve created or media in the public domain. Otherwise, you need to obtain written permission and/or pay a fee to the copyright holder. For more information, see Sources of Public Domain Images.

Well, that’s my list of common mistakes to avoid when making your first science video. This is not an exhaustive list—just the ones that I found to be most problematic for me, a scientist. Some of these are no-brainers, but others you may find difficult to avoid even if you know better.

Want to learn more? I go into greater detail about these and other pitfalls to avoid in my book, The Scientist Videographer. Check it out.

Where Should I Publish My Science Video?

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You’ve finished producing your science video and are ready to publish it.  Where is the best place?  YouTube? Your own website? In the following tutorial, I discuss some points to consider in making your decision because, in the end, it will depend on your particular situation and your objectives.

Be sure to select the HD version and full-screen options (on the lower right of the player window) for best viewing:

Download the script for the video here:

Download (PDF, 31KB)