Chance and the Macaque

Point/Counterpoint:  an occasional feature where Anne and Brett offer two different takes on an intellectual property issue or idea. 

Monkey Selfie


Comments on the macaque that took pictures have been everywhere.  They include:

Animals have no personhood and can’t own copyrights.

  • It was a picture taken by chance, and so the photographer can’t own the copyright.
  • The photographer says that the macaque acted as his assistant.
  • Does Indonesian law govern?  Does the copyright law of the photographer’s home country govern?
  • The Copyright Office postulates that animals can’t own copyrights.  Neither can spirit guides or deities.  Good to know.

The New Yorker has a good analysis.

But the whole story has brought up a couple of related thoughts for me.  The first is about chance in art, the capturing of chance and randomness in art, and the ability to copyright what results.  Most think—and I do too—that it’s about intent.  Silence is merely silence that isn’t and can’t be copyrighted until John Cage comes along. In those situations, it’s useful to think about what William Patry calls the continuum of idea/expression rather than the idea/expression dichotomy

I am aware of the role of chance in my own work, and that of many other artists.  The paint makes contact with the wet watercolor in a way that I can predict but that is not completely under my control.  I work with the result and create with intentionality, but some part of the resulting painting came about by chance.  That role of chance is often less easy to point to in written works, but there are some writers and poets who work with words generated randomly.  Perhaps the copyright is thinnest as intentionality lessens.  At the same time, part of creation is seizing and recognizing felicitous, unintended results.   It is a conundrum where lack of intentionality becomes intentionality.

I also began thinking about two articles I had read recently in the New York Times.  One was about animal law, and the efforts of the Nonhuman Rights Project to convince courts to extend legal rights to primates.   The other was on ideas about the thoughts and emotions of animals.  Will we someday grant legal rights to animals?  Could an animal understand the incentive of copyright and use it to create?  It seems unlikely now, but I do wonder if it will be possible in the future.