Does Clicking the Shutter Automatically Make You the Owner of the Photograph?

We’ve seen the ‘Selfie Monkey’ hitting the headlines again this last few days, with Peta filing a lawsuit for copyright ownership claim on behalf of the monkey Naruto and sites like Wikipedia using the image freely because a non-human cannot claim copyright. Now the photographer David Slater has hit back with claims that after three days of earning the trust of the monkeys to set up the shot, he set up the composition and ensured all settings on the camera were correct, making him the artist and giving him claim to the copyright as his own artwork.

'Selfie Monkey'
‘Selfie Monkey’ taken with David Slater’s camera equipment.

So has there been any previous precedence for this? Does the act of setting up the shot give you image ownership or is the final act of releasing the shutter to capture the image what matters?

There are actually many eminent professional photographers who do not take their images in the everyday manner we usually think of (point, click, done).

Gregory Crewdson: 

crewdson crew 2

Gregory Crewdson has a film director style role and his team includes a ‘Director of Photography’ and a ‘Camera Operator’ along with a PostProduction team to move and change all the finer details according to his specification. He is undoubtedly creating the photograph but is he taking the photograph when he gives a verbal command and someone else clicks the shutter release?

Gregory Crewdson, directing the scene from in front of the camera.
Gregory Crewdson, directing the scene with arms folded from in front of the camera.

Heinz Klautmeier and Jeff Kavanaugh

t1_0818_phelpsfreeze
Michael Phelps 100m Butterfly Victory, Beijing 2008. Credit: Heinz Kluetmeier and Jeff Kavanaugh/Sports Illustrated.

Jeff Kavanaugh was the assistant to Heinz Klautmeier and it was Jeff who did most of the leg work setting up the technical parts of the shot and yes, actually clicked the button to take the picture too. This image is unusual because it credits both photographer and assistant (although this credit doesn’t extend to the image shown on Getty Images). Many professional photographers have assistants and first assistants working with them in this way and the norm is for the assistant to sign a contract releasing copyright of the image to the photographer so they can publish the image using only their name.

Matthew Brady / Alexander Gardner

Antietam Battlefield, 1862, taken by Alexander Gardner.
Antietam Battlefield, 1862, taken by Alexander Gardner.

The Antietam photos of the 1860s changed the way the American Civil War was viewed. Matthew Brady employed Alexander Gardner but took credit for all photographs and it did not emerge until years later that it was Gardner who had taken some of the most famous and history changing images of that time.

Richard Prince

'New Portraits' by Richard Prince.
‘New Portraits’ by Richard Prince.

Master of appropriation Richard Prince most recently took photos from Instagram and sold screenshots at huge prices for his ‘New Portraits’ series. It turns out at least two of the photos he sold weren’t taken by the original Instagrammers and had been reposted from other accounts while Kate Moss doesn’t even have an account and the image he used of her had been stolen from elsewhere on the internet then posted on Instagram. Love his work or hate it, Prince certainly knows how to create copyright controversy and opens up the debate on photographic ownership even further.

Michelangelo, Warhol and Hirst
And it’s not confined to photographers, painters have used assistants to help create their work and then sold it as their own for centuries. Great Renaissance masters like Michelangelo (painter of the Sistine Chapel) had assistants who painted the backgrounds and minor figures in their work, Andy Warhol‘s studio ‘The Factory‘ had many volunteers working on his artworks, and Damien Hirst got into a bit of bother after it emerged he’d only painted around 25 of 1400 ‘Spot Paintings’ himself so is it any surprise that photographers followed suit?

Damien Hirst in front of one of his spot paintings (that he probably didn't paint) in 2011.
Damien Hirst in front of one of his spot paintings (that he probably didn’t paint) in 2011.

And if prior precedence has been set for the artist or photographer claiming rights over an image, despite not having clicked the shutter release themselves, is the issue with David Slater’s ‘Selfie Monkey’ actually about copyright and artistic rights or is it more about animal rights and the movement from activists (with a growing support from the general public) to assign more of our laws and liberties to our non-human cohabitants of this planet?

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