Monkey See – Monkey Do. Protecting A Photographer Serendipitous Fixation

A ‘eureka’ moment is the moment of sudden unexpected discovery. Consider Amazon CEO Jeff Bezos and how he dropped his mobile phone causing a ‘eureka’ moment which he, in turn, patented in the form of mini airbags that deploy if you drop your mobile phone. The similar concept of serendipity is used in a variety of knowledge formation processes. According to the Oxford English Dictionary, serendipity is the manifestation and development of events by chance in a happy or beneficial way. The DC circuit court, in California Research Corp. v. Ladd, 356 F.2d 813 (1966), held that “serendipity is consistent with patentability.”

Likewise, serendipity is consistent with copyright goals of fixation in relation to authorship. Consider the case of David Slater and his macaque selfies. For a work to garner copyright protection, it must be original and expressed in a tangible medium (see, 17 U.S. Code § 102; CDPA 1988 s4). This ‘expression’ essentially needs to be outside the scope of ideas and be perceivable to another human being. Until that moment of perceptibility, the future work remains an idea. In David’s case, he had set the scene with cameras on trigger switches and used yet another camera himself in his attempt to capture his idea. The work has yet to be expressed and is still an idea. Nonetheless, he is the author of the idea.
To suggest that anyone who provides facts or ideas, or in David’s case a camera, is not the author should not cause someone to jump immediately to the conclusion that authorship requires fixation. The further step of securing copyright protection does require such fixation. If, however, expression has occurred, then the work already exists. If this is true, and given that fixation is necessary for copyright purposes, one must conclude that it is irrelevant then who ultimately fulfils the fixation requirement. (Adeney, 2011).
Thus, David Slater should own the copyright in his serendipitous Macaque photographs.
History of Serendipity
Most definitions of serendipity describe it as the gift or facility to discover something by chance, accident and sagacity for which one does not searched. The word was first used in the fairy tale The Three Princes of Serendip. Serendip was the old name of Ceylon, now Sri Lanka. In 1754, Horace Walpole (1717-1797), was the first to be credited with using the word in a letter to Horace Mann. James H. Austin (1978) provided the history of the word and concluded its meaning to be: “Serendipity is the facility for encountering unexpected good luck, as the result of accident, sagacity, or general exploratory behaviour.”

This was followed by the work of Robert Merton & Barber Elinor (2004). They described serendipity as an observation of a surprising fact, followed by a correct abduction. Charles Pierce (1866) theorized that abduction was the only form of reasoning to discover something new. “Abduction is the process of the formulation of an explaining hypothesis. It is the only logical operation that introduces something new; for induction only deter-mines a value; and deduction is leading to the inevitable consequences of a pure hypothesis. Deduction proves that something has to be; induction shows that some-thing actually works. Abduction suggests only a possibility that something could work. Its only justification is that deduction of its suggestion can derive a prediction, which can be tested by induction. And if we want to learn something or explain phenomena we have to do that via abduction.” (Id) Pek van Andel (2004) agreed stating that in all original research neither the questions nor the answers are a priori known. What really is new (and surprising) cannot be derived in a logical way from the old or the known.

Serendipity and the Law
Serendipity has entered the legal profession. In patent cases, the courts distinguish between accidental discoveries by characterising them as either an “invention” or a “discovery.” Inventions are determined to be created through intention; in contrast, discoveries are the product of serendipitous intervention. Inventions are patentable; discoveries are not. This principle is stated in Pfaff v. Wells Electronics, Inc., 525 U.S. 55, 60 (1998), where Justice John Paul Stevens wrote that “The primary meaning of the word ‘invention’ in the Patent Act unquestionably refers to the inventor’s conception rather than to a physical embodiment of that idea.”

Many scholars and scientists believe that they are managing their work. They believe that they have the ultimate responsibility of and credit for their work. Actually, this is accurate in a very small number of situations. Most scientists utilize existing and well-documented theories. They carefully follow the prescribed practices common in their scientific discipline. As a consequence, their work basically only increases the knowledge base of their discipline. The results are usually the expected results and often not at all surprising. As such, theories function as managers (Smit, 2004).

Does this anticipated outcome genuinely further patent’s objective of protecting that which is novel, non-obvious and have industrial application? Jeff Bezos’ ‘eureka’ moment was serendipitous and patentable. Likewise, in copyright, serendipitous fixation should also be allowable.

Fixation and Authorship
A celebrity is interviewed on a talk show and provides an impromptu comic soliloquy; a photographer’s camera is stolen by a monkey; a musician improvises a solo riff during a live performance. In each of these scenarios, it can be argued that words, pictures or notes are sufficiently original and noteworthy to be worthy of some type of protection. The celebrity is likely not to want the soliloquy to be taken and re-used by another person perhaps inaccurately, perhaps out of context, and perhaps for the commercial profit. Yet none of the above persons has written or recorded the material in advance (Adeney, 2011). They are perhaps even serendipitous in nature.

Copyright protection may still be available in these instances. Another person recording the performance or composition could be sufficient to characterise it as a copyright work. A media organisation, someone with a mobile phone, or a monkey could fix the expression in the way required by copyright law. These possibilities are contingent upon fixation not being an element of authorship, so that fixation need not be exercised by the person claiming authorship status (Id). In these instances, authorship would be established by the intellectual acts of composition and expression, divorced from fixation. Fixation would have been reduced to little more than a formality, capable of exercise by anybody (Id).

The Amanuensis Relationship
There are two-stages in the creation of a work. The first stage is in the author’s mind. The second stage is when it acquires a material form. This is when the work becomes ‘complete’ for copyright purposes, although it ‘existed’ prior to that particular fixation. By this logic, authorship must happen at the point where the work comes into ‘existence in a real sense’, while copyright will subsist only upon completion of title (Laddie, et al, 1980).
Donoghue v Allied Newspapers Ltd, [1938] Ch 106, set the precedent that when another individual acts as an amanuensis for the author, the author will be vested with copyright protection for the work created. “The physical acts of the agent or scribe are attributed wholly to the author who has supplied the words to be recorded. The scribe cannot usurp the role of author but has rather fixed the work for copyright purposes for the benefit of the person who has provided the expression.” (Id)

This theory allows that works may be incorporated into a tangible medium by another individual other than the author. The authors of Copinger and Skone James on Copyright (2011) support this theory. They assert that: “Since fixation addresses the issue of the definition of the work, and proof as to its existence and content, there is no reason of principle why the person who creates the work and the person who fixes the work should be the same. The functions of creation and fixation are distinct … Copyright protects the skill and labour of the author, and once he has created and expressed his work, it is immaterial how his work comes to be fixed.” (Id)

The two concepts of serendipity and amanuensis should be applied to David Slater’s photographs which include the “Macaque Selfies”. It is clearly within the realms of the law to allow that the skill and labour that David invested in travelling to Sulawesi, studying the macaques and gaining their trust was a key component in capturing the images. David set cameras up in a skilful and artistic manner which would allow for the serendipitous capture of images of the macaques. The fact that a macaque took the opportunity to snap the picture as opposed to the self-timing mechanism should not change the nature of the amanuensis. Again: “Serendipity is the facility for encountering unexpected good luck, as the result of accident, sagacity, or general exploratory behaviour.” David Slater should benefit from his sagacity and general exploratory behaviour as this is a genuine reflection of his work as a wildlife photographer.

• Adeney, Elizabeth (2011), Authorship and Fixation in Copyright: A Comparative Comment, 682 Melb U Law Rev 35
• Austin, James H. (1978), Chase, Chance and Creativity, The lucky Art of Novelty, Columbia University Press, New York
• Garnett, Kevin; Davies, Gillian; & Harbottle, Gwilym (2011) Copinger and Skone James on Copyright, 16th ed, Sweet & Maxwell, London
• Laddie, Hugh; Prescott, Peter & Vitoria, Mary (1980) The Modern Law of Copyright, Butterworths, London
• Merton, Robert K. & Elinor, Barber (2004), The Travels and Adventures of Serendipity: A Study in Sociological Semantics and the Sociology of Science, Princeton University Press, Princeton, New Jersey
• Smit, Wim (2004) Serendipity or The Creation of the Unexpected, Special Focus Symposium on Cognitive, Emotive and Ethical Aspects of Decision Making in Humans and in AI, Arnhem, The Netherlands
• Van Andel, Pek (2004), What does not surprise is not new (in Dutch: Wat niet verrast is niet nieuw), NRC Handelsblad, Arnhem, The Netherlands


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