It definitely can, according to what happened to David Slater. The events are well known and date back to 2011 but for some reason their effects keep following each other.
The facts are pretty straightforward: photographer David Slater’s camera was seized by a cheeky macaque that happened to press the right button at the right time, taking one of the funniest and most expressive selfies a monkey could ever shoot. Not unexpectedly, the photo became viral and everyone was at peace with it until Slater claimed the copyright for that very image.
All of a sudden, the Interwebs went bananas (no pun intended).
A number of issues was raised and still remains unsolved:
- Can Slater claim the ownership of a photo for the sole reason that it was taken with his equipment?
- Can a monkey be the rightful owner of a product of creativity – or of any object at all?
- Is the owner of a picture the one who presses the button of the camera?
Let me disclose my opinion on the matter straightaway: David Slater has the full ownership of his picture and his claims are absolutely legitimate1. Unfortunately, most arguments used in favour or against this statement are pointless and at times even ridiculous:
- Can monkeys have a lawyer?
- If we agree the monkey owns the picture, how do we assess its licensing preferences?
- Are we giving a monkey rights, only to exploit them by putting the picture into the public domain realm?
The fact is, this is not a matter of copyright at all.
By the way, I’m not particularly fond of copyright issues in general: none of my photos is watermarked, I’d be glad to make some money out of them but almost nobody is giving me any2, and the only thing that drives me really mad is when a large corporation blatantly steals other people’s work dispossessing them of the real value of their picture: not its ownership but its authorship3.
And here we come to the real topic: who is the author, what “authorship” is and what really means to take a photograph.
It turns out, it cannot be just pressing a button. I wouldn’t waste time on this but, just to have fun for a couple of minutes, let’s think about some of the implications.
- I put my camera on a tripod, frame the picture, check exposure and depth of field, set the ISO. The subject of the picture would be myself, the Great Gastondini: not just an amazing photographer but also a world-renowned juggler. I need the picture to be taken exactly when all of the 30 knives I’m juggling with are up in the air, I therefore cannot rely on a timer. And my hands will be quite busy, so I cannot use a remote either. I’m in a park and a passer-by graciously agrees to press the camera’s button in my place. Then the police comes, takes me in for carrying steel weapons in a park, I am sentenced two years in prison and when I finish serving my time I discover that the passer-by made a lot of money selling a photograph taken with my camera to the main national papers (“The last hours of the Great Gastondini as a free man”).
- After that, I give a turn to my life and leave for the jungle. I need some “me-time” to recover from the shock and experiment with wildlife photography. Tigers are great fun: I’ll try to take a close-up picture of a tiger. Tigers, I was told, are also slightly dangerous so I’ll wait for one on a tree. Too bad I forgot my remote, but with some unexpected McGiver-ish skills I manage to set a mechanism using just a few rubber bands, a liquid lunch, and a particle accelerator : as soon as the tiger stumbles on a well hidden wire, the camera will click. Wow, wonderful picture! Gloating over my success, I share it on Facebook, pack, book a plane ticket and, as soon as I land, a man in a dark suit gently but firmly informs me at the airport that I’m being sued by a tiger.
I could go on, but I think I made my point.
For the last fifteen years I’ve been involved with a no-profit association that organises workshops on art and creativity. In June we started planning the activities for the year 2016-17 and – since we will be dealing among the others with a bunch of 16-18 years old boys and girls – we thought it was the right time to bring up some basic issues about the meaning of the word “art”.
Almost immediately, my mind went to the late Vivian Maier: she spent most of her (quite long) life taking wonderful, amazing, stunning photographs – but she didn’t share any of them. They were discovered, acquired and subsequently shared by collectors few months before Maier’s death only to become popular posthumous.
I was conflicted: while I find these pictures among the brightest examples of street photography, I felt that buying a book with her photos would be a violation of her wish of keeping them private (I’m not sure about Maier’s opinion on the matter). Then I found myself asking: was Vivian Maier even “a” photographer? Does photography require an audience? Or is it just incidental?
This is monkey business. Pun intended.
As a matter of fact, it’s the same problem from the opposite point of view: in my understanding of photography, a photograph requires a certain degree of intentionality – which obviously that monkey lacked (until proved otherwise). And so much it has to be, that not only a photographer needs to be actually willing to take a picture: it also has to be “destined” to someone else (hence my issue with Maier).
It is my firm belief that every work of art has embroidered in itself a destination. It doesn’t really matter when or who will eventually see it, the main point being that – as soon as we finish it – it acquires its own life, its own status and it is somehow taken from us. It’s not entirely and exclusively ours anymore and we cannot retroactively change it. It’s “done”.
A certain degree
I think I made myself clear about why I don’t think that very monkey owns its own picture. To be even clearer, it’s not because it’s just a monkey: if Koko – having watched me taking, printing and showing people pictures – would borrow my camera and press some random buttons I wouldn’t be so sure anymore. Whatever you may think about Koko, I must at least be open to the possibility that she (and I wrote “she” instead of “it” after due consideration) knows somehow what’s going on.
Somehow. At a certain degree. Someone, in some way. Between two clear-cut extremes (the cheeky monkey is not a photographer, Vivian Maier is), everything else starts to look blurry.
Few days ago I started experimenting with street photography, a genre I always aimed at, lacking the guts to overcome the basic fears every street photographer knows very well. I was encouraged by some surprisingly good results (compared to my pretty low expectations) and by the purchase of a 27mm Fujifilm pancake lens that definitely didn’t help my GAS.
In that “surprisingly” resides the whole point. To discuss this, I’ll use three photos (not great photos but please remember this was my first attempt – and quality is not the point here) taken the same day during a walk in Clapham South in London while I was going to the supermarket.
Picture nr. 1: Lunch breakPart of the pavement was inaccessible due to some repairs; it was around lunchtime and the workers involved were on their break, queuing as far as outside the door of a kebab shop too small to let them all in. The last man in the queue was scratching his head, probably wondering how much would it take to get a meal – or maybe just deciding what to order. Passing by I saw this scene with the corner of my eye: I stopped, turned on my camera, went back a couple of meters and took the shot. Luckily, that man was still scratching his head: the scene was like frozen and even if I missed my first chance, I managed to get the picture I had in my mind twenty seconds later – which, in street photography, are an eternity.
I can gladly say that this picture is mine: I saw something, I framed, I shot, edited and printed. Well done, young (metaphorically speaking) street photographer: the world is your oyster now.
Picture nr. 2: Man on the streetThis was actually my first picture of the day. I was waiting for my niece, a man was looking around, probably waiting as well for someone or something. He looked at the same time puzzled and confident; maybe for this reason he caught my attention and I shot from the hip, but I didn’t have any particular expectations. At home I discovered that the upper part of his body was perfectly framed inside the tree behind him. He was wearing a white t-shirt, so his figure would be flattened to the background otherwise. Lighting, framing, all was blind luck, I just pressed the button by intuition.
Since I don’t think I have superpowers, neither I am so good at photography to just shoot from the hip and get a perfect frame only by intuition, I feel I’ve been lucky. Ok, well, I won’t tell anybody. It happens to the best ones too.
Picture nr. 3: Street cleanersTwo men are cleaning the pavement: one draws my attention because of his unusual headgear. I don’t find people interesting only because they wear a hat different from the one I would wear (I actually despise photos whose only value is to be supposedly “ethnic”), nevertheless I feel I should take the shot. Back home I discover a completely different scene where the main actor is the man in the background, pointing at a third colleague of theirs who was in a truck driving by, out of the frame. My original target is now just a good addition for the sake of composition to a completely different story.
This is not the picture I had in mind. Actually, I didn’t have any picture in my mind. I pressed a button not much more consciously than a cheeky monkey. I edited (some cropping, then B&W conversion) this picture almost as if it wasn’t mine.
I just don’t know
“Photography” can be many things. Fine art, photojournalism, fashion, street photography, each category has its own set of unwritten rules and its own heterodox photographers that break these rules (sometimes creatively, sometimes unethically, at times even both).
Nevertheless, I find it difficult to tell “exactly” what photography is, where authorship begins and pure chance ends. There are few things I’m quite sure of, though.
- Photography requires a willing act. This can be pressing a button, but can also just be creating the circumstances for the photo to “happen”4 (like taking a camera into the jungle, shooting pics at a group of monkeys and being lucky).
- A willing act cannot exhaust the meaning of photography though, because there is always something else involved. Whatever the plan, taking a photo means freezing an instant and since no one can predict the future, no matter how short, no matter how imminent, that instant is unpredictable and ultimately out of our control.
- None of my pictures is completely, totally, entirely mine: not just because of its “destination” as I wrote before, but because it’s not a mere by-product of my head: it records something that is in the outside world and that is not in my possession (yes, even if it’s a self-portrait). A picture is always some sort of cooperation with the the world around us. I’d go even further, asserting that my best pictures (or at least the ones I love the most) are a blessing and a gift: I feel they are given to me, not the other way around.
- Finally, a photograph requires an output – thus an editing process – and that’s authorship too. You cannot be completely “transparent” and delegate your camera (which means someone else, like the engineers behind the algorithm that converts the raw data to jpg or to whatever final output format will be) the responsibility of the last end of this process. It’s perfectly fine to do so, of course, but also this is a precise editorial choice.5
Premeditation, preparation, occasion, observation, readiness (the ability to catch the “decisive moment” described by Cartier-Bresson, if you like), luck, chance and the willing or unwilling but inalienable cooperation of the world around you: I think all of this “somehow, at a certain degree” is required for a photograph. Not even a good one. So it’s pointless to argue about who pressed the button: in the end, every photographer is an author as much as his surroundings allow him to be.
And in David Slater’s case, his picture was taken by means of a cheeky monkey’s finger.
- Before you ask why do I publish someone else’s photograph in a post where I repeatedly declare the rights of its owner: it falls under what is generally called “fair use”. ↩︎
- I kept some images in the 500px Marketplace for a while, but in the end I found it to be rather pointless. ↩︎
- It should be clear from what follows that, in my view, the former is a mere consequence of the latter. ↩︎
- I use the word “happen” reminiscent of Roland Barthe’s La chambre claire: note sur la photographie (1980), even if the meaning here is quite different. ↩︎
- This is particularly clear to anyone coming from analog photography: in my case the editorial choice used to begin in the shop, buying an HP5 film and a matte paper number 3. ↩︎