MONKEY CREATIVITY!?: AUTHORSHIP AND COPYRIGHT IN THE AGE OF NON-HUMAN CREATORS

By

EDGAR OKITOI*

The digital age has fundamentally challenged traditional notions of authorship and copyright law. With the advent of increasingly sophisticated technologies and changing societal values, the very definition of "author" is under scrutiny.

At the forefront of this debate in my opinion, are two landmark cases, that is, Naruto v. Slater,[1] the "Monkey Selfie" case, and Thaler v. Perlmutter,[2] concerning AI generated art. These cases serve as critical lenses through which we can examine the core principles of copyright, the ethical implications of non-human creativity, and the future of intellectual property in a world where the lines between human and non-human creation are increasingly blurred.

1.0  THE NARRATIVE OF NARUTO V. SLATER - THE MONKEY SELFIE

In 2011, while in Indonesia's Tangkoko Nature Reserve, wildlife photographer David Slater found himself at the heart of an unprecedented legal dilemma. Slater, who was and is an experienced professional dedicated to capturing the beauty of the natural world, encountered a crested macaque, a monkey, named Naruto, who, in an unforeseen turn of events, took a series of self-portraits using Slater's unattended camera.

The circumstances surrounding the event are essentially very important because Slater had strategically set up his camera equipment, adjusting settings to capture the macaques in their natural habitat and when Naruto picked up the camera and began pressing the shutter, the resulting images were not just random snapshots, they possessed a certain composition and aesthetic appeal that quickly captured the attention of the global online community.

The viral nature of these selfies was not merely due to their novelty. They presented a unique "primate's perspective" and offered a rare glimpse into the world through the eyes of an animal or as the case may be, wildlife. The expressive nature of the photographs ignited a public fascination, catapulting Naruto and Slater into the centre of intellectual property Law.

2.0  COPYRIGHT CLAIMS AND COUNTERCLAIMS

The publication of the "monkey selfies" raised an important intellectual property law question, that is, who had the right to control the commercial use and distribution of these images? Slater on his part argued that he was the rightful copyright owner, citing his involvement in setting up the camera equipment, adjusting the settings, and traveling to the specific location where the photographs were taken. He viewed these actions as integral to the creation of the images and asserted that they constituted sufficient creative input for copyright protection.

This argument and reasoning in my opinion was similar to that of Justice Neuberger in Antiquesportfolio.com plc v Rodney Fitch and Co. Ltd[3] wherein the good Judge remarked that the positioning of the camera or object, choosing the angle and lighting plus focus were indicators of the photographer’s skill and judgement. He went on to add that the intention is particularly significant, that is, if the photographer’s intention is to stamp his own personality and taste on the work, then he might as well own the copyright in it which Slater did in this case.

However, Slater's claim was met with significant challenges for example Wikimedia Commons, a popular online repository of open-source content, refused to remove the images from its database, asserting that they were in the public domain since a non-human character had created them. This stance ignited a heated debate within the legal community and among the general public regarding the applicability of copyright law to works created by non-human entities.

3.0  PETA'S INTERVENTION AND THE FIGHT FOR NARUTO'S RIGHTS

In 2015, People for the Ethical Treatment of Animals (PETA) took a bold step by filing a lawsuit on Naruto's behalf against Slater and his company, Wildlife Personalities Ltd. PETA's lawsuit sought to establish Naruto as the legal author and copyright holder of the photographs, arguing that Naruto's actions in pressing the shutter were "purposeful, intentional, and creative."

The lawsuit was grounded in the belief that animals, as sentient beings capable of engaging in creative acts, should be afforded the same legal protections as humans. PETA's legal team argued that denying Naruto copyright protection would perpetuate a system that unfairly advantages humans at the expense of other species.

4.0  THE COURT AND THE HUMAN-CENTRIC INTERPRETATION OF COPYRIGHT

The U.S. District Court for the Northern District of California dismissed PETA's lawsuit, ruling that animals lack statutory standing to sue under the Copyright Act. The court emphasised that the Copyright Act's language, which refers to "authors" presupposes those authors are human beings which is the same for Uganda’s Copyright and Neighbouring Rights Act.

The Ninth Circuit Court of Appeals upheld the district court's decision, further solidifying the legal principle that animals cannot be copyright holders under current U.S. law. The court acknowledged the importance of PETA's advocacy for animal rights but reiterated that expanding copyright protection to non-human entities would require legislative action, not judicial interpretation as Courts do not make law but rather interpret it.

Despite the legal defeat, PETA and Slater reached a settlement in 2017, with Slater agreeing to donate a percentage of future revenue generated from the monkey selfies to charities dedicated to protecting Naruto's habitat and welfare. The settlement, while not altering the legal landscape, served as a symbolic victory for PETA and underscored the ethical considerations surrounding the use and exploitation of animal-created works.

5.0  AUTHORSHIP UNDER SCRUTINY AND UNDERSTANDING FOUNDATIONAL PRINCIPLES OF COPYRIGHT LAW

The concept of authorship lies at the heart of copyright law, defining who has the exclusive right to control the use and distribution of creative works. In most jurisdictions, copyright protection extends only to works created by human authors.

An "author" is a "person who creates the work." The U.S. Copyright Office's Compendium explicitly excludes "works produced by nature, animals, or plants" from copyright registration. This principle has been affirmed in numerous court cases and is deeply rooted in legal precedent and this position has also found acceptance in Ugandan courts, the creator of the work and it is suffice to add that authorship is significantly different from ownership, in that an author creates the work and an owner owns the copyright in it. An owner and author can be the same person[4] that is of course in the absence of a commissioning agreement and or works for hire.[5]

5.1  ORIGINALITY, FIXATION, AND HUMAN INTENT: DEFINING THE BOUNDARIES OF PROTECTION

To qualify for copyright protection, a work must meet several criteria:

The work must be original or originate from the author[6], meaning that it must be independently created and exhibit at least a minimal degree of creativity. The U.S. Supreme Court's decision in Feist Publications, Inc. v. Rural Telephone Service Co.[7] clarified that mere compilations of facts or mechanical reproductions lack the originality required for copyright protection.

There has to be a Fixation or the work must be fixed in a tangible medium of expression, such as writing, recording, or photography. This requirement ensures that the work is sufficiently concrete and identifiable for copyright protection to attach. The High Court of Uganda in Gloria Akech v Brookside Limited & 2 ors[8] wherein the good Judge Justice Patricia Kahigi Asiimwe clarified that copyright protection applies only when work is reduced into material form not to mere ideas.

Lastly, the author must exercise subjective judgment and creative choices in producing the work. This element is critical in distinguishing between works created by humans and those created by natural forces or non-human entities.

The human authorship requirement reflects the anthropocentric nature of copyright law, which has historically been designed to incentivize and reward human creativity therefore this focus on human creativity has shaped legal interpretations of authorship, ownership, and the scope of copyright protection. However, the rise of non-human creators has challenged the adequacy of this anthropocentric framework and raised fundamental questions about the fairness and inclusiveness of copyright law.

6.0  NON-HUMAN CREATORS AND CONFRONTING THE LIMITS OF LEGAL THEORY

The Naruto case highlighted the challenges of extending copyright protection to animals. While PETA's lawsuit sought to recognise Naruto as the author of the "monkey selfies," the courts ultimately concluded that animals lack the legal capacity to hold or enforce copyrights.

The Naruto settlement offered a potential model for addressing these concerns by allocating a portion of the revenue generated from the images to animal welfare charities, acknowledging the ethical dimensions of the case without altering the legal framework.

7.0  AI AUTHORSHIP, A LOOK AT THE ALGORITHMIC FRONTIER

The emergence of artificial intelligence has further complicated the debate over authorship and copyright. AI systems are now capable of generating original works of art, music, literature, and code, thus raising the question of whether AI can be considered an author, and if so, how should copyright law apply? The U.S. Copyright Office has however, taken a firm stance against recognizing AI as an author, stating that copyright protection extends only to works created by human beings. This position has been supported by court decisions, including the landmark Thaler v. Perlmutter[9] case.

8.0  THALER V. PERLMUTTER: A CASE STUDY IN AI CREATIVITY AND COPYRIGHT

8.1  THE GENESIS OF THE "CREATIVITY MACHINE"

Dr. Thaler, a computer scientist and AI researcher, developed an AI system called the "Creativity Machine" which is capable of generating original works of art. Thaler sought to copyright an image created solely by the Creativity Machine, without any human intervention. He argued that the AI system should be recognized as the author of the work and that he, as the system's owner, should be granted copyright protection. The U.S. Copyright Office rejected Thaler's application, asserting that the work lacked human authorship.

He then challenged the Copyright Office's decision in court, arguing that denying copyright protection to AI created works would stifle innovation and undermine the economic incentives for developing AI technologies.

The U.S. District Court for the District of Columbia upheld the Copyright Office's decision, concluding that the Copyright Act requires human authorship and that AI systems cannot be considered authors under current law. The court also emphasized that copyright protection is intended to incentivize and reward human creativity and that extending protection to AI-created works would not further this goal.

The Thaler v. Perlmutter case has significant implications for the future of AI and copyright law one being the reaffirmation of Human Authorship because it reaffirms the principle that copyright protection extends only to works created by human beings.

The decision also has the potential for Stifling Innovation in that, some critics argue that denying copyright protection to AI-created works may stifle innovation and discourage the development of AI technologies.

9.0  CONCLUSION

As technology continues to advance, it may become necessary to develop new legal frameworks to address the unique challenges posed by non-human creators. Potential options include may include for example creating new forms of intellectual property protection specifically designed AI-created works and also considering the expansion of the work for hire doctrines to cover AI systems, with the owner or operator of the system being granted copyright protection.

The cases of Naruto v. Slater and Thaler v. Perlmutter represent a pivotal moment in the evolution of copyright law. As technology continues to advance and our understanding of creativity deepens, we must be willing to re-examine our assumptions about authorship, ownership, and the ethical responsibilities that come with creative expression. The conversation surrounding these cases is not just about animals and AI but more about our evolving relationship with creativity itself and the need to build a legal framework that can adapt to a rapidly changing world.

* Director of Research, Lawpointuganda

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LIST OF REFERENCES

[1] Naruto v Slater, No. 16-15469 (9th Cir.2018).

[2] Thaler v Perlmutter No.22-532 (D.C. Cir. 2025).

[3] Antiquesportfolio.com plc v Rodney Fitch and Co. Ltd [2001] FSR 345.

[4] Bainbridge, David Intellectual Property, 10th ed, Pearson, 2018.

[5] KnightFrank (U) Ltd v Broll Uganda Ltdand Broll Valuation & Advisory Services; Sylvia Nabiteeko Katende v Bank of Uganda Civil Suit No. 443 of 2010.

[6] Stella Atal v Ann Abels Kiruta Civil Suit No. 0967 of 2004.

[7] Feist Publications Inc. v Rural Telephone Service Co. 499 U.S. 340 (1991).

[8] Gloria Akech v Brookside Limited and 2 ors Civil Suit No. 1065 of 2022.

[9] Thaler v Perlmutter No. 22-CV-384-1564-BAH (D.D.C. Aug. 18, 2023).