While in Indonesia in 2011, photographer David Slater’s camera was grabbed by a macaque. While monkey shines are nothing new, the macaque took hundreds of shots including selfies that went viral. While the macaque seemed to have an aesthetic gift, the United States copyright office ruled that “Works produced by nature, animals or plants” or “purportedly created by divine or supernatural beings” cannot be copyrighted. After AI began creating images, American law also says that these images cannot be copyrighted. While the legal issues have been addressed, the philosophical issues have not.
The general issue is whether a non-human animal can have moral ownership rights over its artistic works. This breaks down into the two sub-issues. The first is whether a non-human animal has a moral status that can ground ownership rights. The second is whether 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 that non-human entities do possess ownership rights. Corporations have ownership rights and own copyrights. If a legal fiction like a corporation be seen as having ownership rights, there seems to be no principled way to deny the same rights to animals. After all, animals have a better claim to rights since they are real beings with qualities analogous to humans. Our fellow primates are often very intelligent and can have complex emotional and social lives. Because of these qualities, it is tempting to grant them a proportional status.
An obvious reply to is that corporations are legal fictions and legally fictional people in the United States. As such an appeal to a legal fiction does not help with the philosophical issue of whether animals can have ownership rights. Legally, the matter is simple: just like corporations, animals have whatever legal rights the law gives them. 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 seems reasonable to accept that animals should have ownership rights (and perhaps recognized as people in some cases).
To determine whether animals have ownership rights, it is necessary to determine the foundation of these rights. Our good dead friend John Locke bases property rights on the claim that each person owns their own body (well, God does but He is cool about it) and hence each person owns their own labor. This labor is mixed with common property and 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 their labor with would be theirs. The usual counter is to claim animals are not owners—they are objects to be owned. It is worth noting that people often say the same thing about other people.
Higher animals like dogs and primates also grasp the basics of ownership: they distinguish between what is their stuff and what is not. My dogs have always grasped the distinction between their toys and similar objects that belong to other dogs. They also seemed to understand territory, responding differently to people and animals near our house compared to their reaction in common areas, like the park behind my house. As such, perhaps animals see themselves as possessing ownership rights. Or to be less abstract, thinking they own stuff.
An obvious objection is that animals have, at best, an extremely limited understanding of property and this could be attributed to possessiveness or territoriality. The obvious reply 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 have no understanding of property rights are still seen 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, at least in terms of the foundation of such an alleged right. So, if humans have ownership rights, then animals would seem to also qualify. Thus, animals do have ownership rights.
The next issue is whether 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 such a definition, they are all inadequate. Since such a 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 something similar.
Painting provides a good example: a human intentionally applies paints to a surface based on the contents of their intentional states and this image sometimes resembles something internal (a feeling or thought) or external (a person, landscape, etc.). While animals can apply paint to surfaces, their lack of language makes it difficult to determine what they are doing. If, for example, good grounds for thinking they are creating art. But to be fair to the animals, there are humans who create paintings that look like those created by elephants. The main difference is that the humans claim to be artists while the elephants say nothing about this (which is yet another reason to like elephants). But, if judgment is based solely on 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 a photo can be a work of art and a photographer an artist. The challenge is distinguishing between just taking a photo 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. If the shelves in a shed fail and the paint spills to create a work on par with a Jackson Pollock, that would not make the shed’s owner an artist. If the paint were spilled by a trip-wire trap, this would not make the victim an artist. So, being an artist in photography would seem to require intent and control rather than automation or chance. At the very least, the photographer must know what they are doing and act with intent.
In the case of the monkey taking pictures, the key question is whether 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. Or AI generating an image.
It might be objected that some shots were aesthetically good and judging by the work itself, the monkey had produced art. This does have some appeal—after all, whether the work is art should (it can be argued) rest in the work itself rather than the process of creation. One could use this to argue that AI could thus create art, provided that the image generated would be seen as art until one learned it was AI generated. This is the classic question of whether you need to know who the creator of a work is to decide whether it is art.
But, even if this is granted, it does not follow that the monkey is an artist. After all, an automated camera shooting constantly would almost certainly produce some good photos eventually—but the automating machinery or software would not be an artist. Perhaps 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 probably not an artist. In the case of AI image generators, they have far less claim to being artists. At least animals can lay claim to intent and feelings.
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