Monkey Selfies & Animal Artists

While in Indonesia in 2011, photographer David Slater’s camera was grabbed by a macaque. While monkey shines are nothing new, this monkey took hundreds of shots including some selfies that went viral on the internet. As many things often do, this incident resulted in a legal controversy over the copyright status of the photos. The United States copyright office recently ruled that “Works produced by nature, animals or plants” or “purportedly created by divine or supernatural beings” cannot be copyrighted. While this addresses the legal issue, it does not address the philosophical issue raised by this incident.

From a philosophical perspective, the general issue is whether a non-human animal has moral ownership rights over its artistic works. This breaks down into the two obvious sub-issues. The first is whether or not a non-human animal has a moral status that can ground ownership rights. The second is whether or not a non-human has the capability to create a work of art. These issues have often been the subject of philosophical discussion, but it is certainly worth considering them again.

One approach to the issue of ownership rights is to note that non-human entities are taken to possess ownership rights. To be specific, corporations are taken as having ownership rights—they can and do own copyrights. If a legal fiction like a corporation can be taken to have ownership rights, there seems to be no principled way to deny the same rights to animals. After all, animals have a significantly better claim to rights since they are actual entities with qualities analogous to human persons.

The easy and obvious reply to this approach is that corporations are legal fictions (and legally fictional persons in the United States) and, as such, this does not help with the philosophical issue of whether or not animals can have ownership rights. Legally, the matter is simple: just like corporations, animals have whatever legal rights the law provides. So, if the Supreme Court ruled that animals are people and can own property, then that would be the law—but the philosophical issue would remain unresolved. That said, if corporations should be regarded as having ownership rights (and as people), then it hardly seems unreasonable to accept that animals also have ownership rights (and as being people).

In order to determined whether animals have ownership rights or not, it would be necessary to determine the foundation of these rights. Locke famously bases property rights on the claim that each person owns her own body (well, God does…but He is cool about it) and hence each person owns her own labor. This labor is mixed with common property and thus makes what it is mixed with the property of the laborer. If animals have this sort of self-ownership, then they would have the same ownership rights as humans—whatever an animal mixed her labor with would be hers. The stock counter for this is that animals are not owners—they are objects to be owned. It is worth noting that people have long said the same thing about other people.

Higher animals like dogs and primates also seem to grasp the basics of ownership: they distinguish between what is their property and what is not. To use a concrete example, my husky clearly grasps the distinction between her toys and similar objects that belong to others. As such, there seems to be some basis to the claim that animals regard themselves as possessing ownership rights.

The obvious objection is that animals have, at best, an extremely limited understanding of property and this could simply be attributed to possessiveness or territoriality. The obvious reply to this is that ownership does not seem to require an understanding of property rights—corporations (which have no minds and hence have no understanding) and humans who are dumb as posts are still regarded as having ownership rights.

While the debate over ownership could go on endlessly, animals seem to have as good a claim to ownership rights as humans do, at least in terms of the foundation of such an alleged right. Roughly put, if humans have ownership rights, then animals would seem to qualify as well. Thus, it would seem that animals do have ownership rights.

The next issue is whether or not an animal can create an artistic work. Addressing this properly would require an adequate definition of “art” that would enable one to distinguish between art and non-art. While there have been many attempts to provide just such a definition, they have all proven to be inadequate. Since such a fine definition is lacking, a rough and ready approach must suffice.

In this case, the rough and ready approach is to begin by considering cases in which it is intuitively appealing to accept that a human is creating a work of art. The next step is to use an argument by analogy to determine whether or not an animal could do the same sort of thing.

One clear case is that of painting: a human intentionally applies paints to a surface based on the contents of her intentional states and this image is typically a resemblance to something internal (a feeling or thought) or external (a person, landscape, etc.). While animals do apply paint to surfaces, their lack of language makes it rather difficult to determine what they are doing. If, for example, elephants painted pictures recognizable as elephants, flowers or whatever, them there would be very strong grounds for thinking they are creating art. But, to be fair to the animals, there are humans who create paintings that look exactly like those created by elephants. The main difference is that the humans claim to be artists while the elephants say nothing. But, if the matter is judged entirely by the work produced, if those humans are artists, then so are the elephants.

Another case is that of photography and it seems reasonable to accept that a photo can be a work of art and a photographer an artist. The challenge is, obviously enough, distinguishing between the taking of photos and being an artist. To clarify, photos can be taken by automatic timers, motion sensors, tripwires or by accident but these would not be cases involving an artist. To use an analogy, if the shelves in a shed fail and the paint spills to create a work identical to that of Jackson Pollock of Van Gogh, that would not make the shed’s owner an artist. If the paint where spilled by a trip-wire trap, this would not make the victim an artist. So, being an artist in photography thus requires intent and control rather than automation or chance. At the very least, the photographer must know what she is doing and act with intent.

In the case of the monkey taking pictures, the key question is whether or not the monkey understood what it was doing and acted with intent. If the monkey was just playing with the camera and it just happened to take a few shots that looked good, the monkey is no more an artist than an automatic timer, motion sensor or defective shutter control that made the camera constantly shoot.

It might be objected that some of the shots were quite good aesthetically and judging by the work itself, the monkey had produced art. This does have some appeal—after all, whether the work is art or not should (it can be argued) rest in the work itself rather than the process of creation. But, even if this is granted, it does not follow that the monkey is the artist. After all, an automated camera shooting constantly would almost certainly produce artistic photos eventually—but the automating machinery or software would not thus be an artist. Thus, there could be art but no artist. In the case of the monkey, this seems to be the most plausible explanation—the money was probably just pushing the button and by chance some good images occurred. As such, the monkey was not an artist.

 

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  1. Why do you assume a moral rights theory of IP? The prevailing theory among American IP scholars is utilitarian & it provides a much simpler explanation of why animals can’t own IP: it can’t provide them an incentive to innovate.

  2. Copyright lawyers are approaching this backwards – trying to find authorship where there is none (no human/no copyright). Perhaps another way of thinking about it is – if a monkey can take a photograph and it’s not protected, why should we protect photographs taken by humans?

  3. Hírmorzsák #4.16 - COPY21 - pingback on May 28, 2016 at 6:16 am

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