Animals as Artists: An Interdisciplinary Conversation on German Copyright Law

Abstract

Keywords

Animal Rights, Copyright Law, Animal Philosophy, Art Theory, Environmental Anthropology

Empfohlene Zitierweise:

Kessel, Julia, Bartosch, Roman (2025). Animals as Artists: An Interdisciplinary Conversation on German Copyright Law. Journal of Animal Law, Ethics and One Health (LEOH), 48-59. DOI: 10.58590/leoh.2025.005

* LL.B., Research Assistant, Faculty of Law, FernUniversität in Hagen, Germany

** Prof. Dr. phil., Chair of Literatures and Cultures of the Anglophone World and the Teaching of English and Co-Director of UNESCO-MOST BRIDGES Hub for Planetary Wellbeing and Ecological Flourishing, Faculty of Arts and Humanities, University of Cologne, Germany

Content

• I. Introduction
• II. Principles of German Copyright Law
• III. The Question of the Animal
• 1. The Animal under German Copyright Law
• 2. Probing the Limits: Personhood, Legal Subjectivity, and Nonhuman Artistic Practice
• IV. Towards an Interdisciplinary Conversation
• 1. Animal Philosophy
• 2. Art Theory
• 3. Environmental Anthropology
• V. The Way Ahead: Legal Studies and the Environmental Humanities

I. Introduction

Can animals be artists? This question challenges various disciplines and has produced various answers and ongoing debate. In the light of demands for advancing a perspective of One Health that pays ample attention to the legal and ethical standing of animals in order to engender more robust frameworks for multisector and transdisciplinary research on more-than-human, planetary wellbeing, it is high time this debate welcomed the polyphony of voices from various disciplines in order to enable mutual learning and explore ways towards greater consilience. Indeed, when it comes to animal ethics in the horizon of One Health, traditional disciplinary divides and established disciplinary protocols for research are pressurised by cascading ecological crises (such as climate change and biodiversity loss), societal debates and developments (such as in post- and decolonial thinking as well as in demands for a posthumanist philosophy), and scientific or technological advancements (such as in animal ethology and artificial intelligence research).

These crises, developments, and advancements throw into sharp relief disciplinary blind spots as well as avenues for cross-disciplinary exchange and mutual learning. This is why, like other disciplines, legal studies might benefit from sustained inter- and transdisciplinary exchanges and generate novel answers to long-standing questions revolving around the status of animals in law and ethics. The present paper therefore enters a dialogue with the environmental humanities, a vibrant field comprising ecologically-informed and critical perspectives from philosophy, cultural studies, cultural and environmental anthropology as well as other humanities and humanities-leaning social sciences, in order to generate a richer set of possible answers to the question of animal authorship.

Before it introduces three such perspectives and the findings articulated in the areas of environmental and animal philosophy, art theory, and anthropology, the paper outlines the current state of research and legislation on animal authorship under German copyright law. It introduces and critically discusses key concepts and claims pertaining to the notions of intellectual property, the act of creation, and the status of the creator before assessing weaknesses and blind spots regarding the question of animal authorship in legal debates. These will inform the interdisciplinary discussion of philosophical, art-theoretical and ethnographical insights that in turn will be taken to explain emerging legalist arguments and practices and point to potential directions in future research. The paper thus follows the suggestion to develop a “One Rights” approach complimentary to One Health “under a shared normative framework”[1] and informed by a critical legal studies perspective as well as law and humanities research. It argues that an expanded framework of law and environmental humanities can “yield better outcomes for humans, animals and their shared planetary home.”[2]

II. Principles of German Copyright Law

Whether or not animals can be granted relevant legal status under German copyright law is a question closely linked with the legal debate over animal rights, more specific legal discussions around animal personhood, as well as research in other disciplines on animal subjectivity and its potential implications for interdisciplinary debate. The appropriateness and feasibility of animal rights as such is no longer contested;[3] however, more detailed discussions of the status of animals under German copyright law are still only emerging. In the following, we set out to introduce and critically assess key principles of German copyright law as a first step in the direction of advancing this research to becoming more inclusive of interdisciplinary perspectives. We recognise that legal debate and, accordingly, the legal status of animals is in the process of substantial transformation and with this paper hope to advance both the legal debate and its ethical and scientific underpinnings.

The main legal foundations of German copyright law are set out in the Copyright Act (UrhG) of 1965.[4] Copyright arises solely through the creation of a protectable work by the author. Application or registration procedures are not required. Pursuant to Section 11 UrhG, the intellectual and personal relationships of the author to their work and with regard to the use of the work are protected.[5] At the same time, copyright law in Germany intends to ensure appropriate remuneration for the use of the work. It therefore has an economic component in the form of an absolute exclusive right.[6] This enables the author to exclude third parties from using their copyright. There is also a personal rights component, which is the focus of this paper. This component is based on the legislator’s idea that the author is bound to his work by an “invisible bond” (“unsichtbares Band”)[7] throughout his life. The most important personal rights are the right to be named as the author (Section 13 UrhG), the right of first publication (Section 12 UrhG) and the right to prohibit the distortion of works (Section 14 UrhG).[8] Other key aspects include the notion of individual intellectual creation (“work”), of an identifiable creator (“artist”), and of the status of personality and personhood.

Classification as a work is necessary for protection under Section 1 UrhG.[9] According to Section 2 (2) UrhG, only individual intellectual creations are works within the meaning of this law. In this context, the term creation includes works of painting, music, literature, and feature films. Accordingly, art is the free creative design in which an artist can directly represent personal impressions as well as individual experiences and experiences through the medium of a specific formal language.[10] While the list of potential works is expandable, according to the current legal situation, creative work can only be performed by humans.[11] This is partly due to the fact that creation is based on a thought process, which is why things found by chance in nature are ruled out.[12] This reasoning excludes the possibility of similarly expressive designs by animals. In addition to the aforementioned personal creation with intellectual content, the prerequisites for protection of a work are a perceptible design that expresses the individuality of the author.[13] There must also be a certain amount of creative leeway, which can be made use of.[14]

Additionally, the notion of copyright law is deeply tied to an identifiable creator (“artist”). To qualify as an artist, legal capacity is a necessary prerequisite.[15] This capacity must be granted in order to be considered a legal entity in the legal system. Natural and legal persons, such as public limited companies or associations with legal capacity, are currently considered to have legal capacity. According to Section 7 UrhG, the author is the creator of the work. Accordingly, the author is the person who has created the work through personal intellectual creation. This places the individual at the centre of copyright law. The structure of copyright law in terms of its protection requirements, its scope of protection, and its limits are entirely geared towards the protection of human creativity.

The notion of personality primarily pertains to originality and individuality. These refer to the sum of all individual and enduring peculiarities in a person’s behaviour and experience.[16] However, the question of personal rights is also intricately tied up with assumptions about a right holder’s personhood. Accordingly, only a natural person can be a creator within the meaning of copyright law in prevailing opinion.[17] The currently applicable dogma thus presupposes that a natural person must be a human being.[18] In 1988, in a seminal ruling, the Hamburg Administrative Court explained this dogma by invoking the special personal dignity of humans “which sets them apart from impersonal nature and enables them by their own decision to become aware of themselves, to determine themselves and to shape themselves and their environment.”[19]

In addition to the notion of personhood, German law recognises the “creator principle” (German Schöpfer-Prinzip), which results from Section 7 UrhG and elevates the creator of the work to the status of author. The creator principle states that the actual creator of the work is always its author.[20] An individual intellectual achievement created by a person is a prerequisite for such a personal intellectual creation. The resulting work is characterised by this intellectual individuality, which the law defines as “personal creation of individual expressiveness” (“persönliche Schöpfung individueller Ausdrucks-kraft”)[21] indicative of a creator’s unique personality. Mere selection decisions or chance finds are therefore not protected by copyright law.[22] The level of creation of a work under copyright law is therefore not based solely on the fact that it originates from a human being. Not every human performance is protected; rather, it is also necessary that it is not commonplace or routine, but individual and therefore worthy of protection.[23] With regard to the question of animal authorship or creation, it can be stated that animals in law already lack legal capacity. Creations that cannot be attributed to a human creator are not eligible for copyright protection under current law. A creator within the meaning of copyright law can currently only ever be a natural person.

III. The Question of the Animal

1. The Animal under German Copyright Law

According to current German law animals are not legal persons. They are protected solely by Article 20a of the Basic Law, which the German legislator included as a state objective on 17 May 2002. However, Article 20a of the Basic Law is not a fundamental right. It merely commits the state to protect animals and natural resources. The aim of the preceding, long-lasting discussion was to be able to introduce animal protection as a legal value of equal weight in processes of weighing up constitutional rights such as freedom of research, religion or art in the first place.[24] However, the legal relationship between humans and nature was left open.[25]

The Act to Improve the Legal Status of Animals in Civil Law of 20 August 1990 introduced the provision of Section 90a BGB (the German civil code in which most generally applicable private law is codified). According to sentence 1 of said provision, animals are not objects but a category of their own.[26] Section 90a sentence 3 BGB puts them on an equal footing with legal objects. As they are neither natural nor legal persons, they currently have neither legal personality, legal subjectivity nor legal capacity.[27] Animals are therefore not legal persons under current law but are defined negatively as “other than things.” The new regulation did therefore not elevate animals to the status of legal subjects but rather created an independent category alongside other objects.[28] This categorical inequality means that equal consideration of the interests of animals and humans is hardly conceivable.[29]

2. Probing the Limits: Personhood, Legal Subjectivity, and Nonhuman Artistic Practice

Given current societal and scientific debates over animal personhood and legal standing, no least through advances in ethological and biological research on animal interiority[30] and morality[31], and in interdisciplinary studies of animal subjectivity[32] and human-animal collaboration and cooperative learning,[33] it should be clear that this is not where the debate over animal authorship and legal capacity should end but where it ought to begin in earnest. The limits that curtail current debates will be discussed in some detail in the following section, before they are addressed by way of critically assessing insights on notions of personhood, legal subjectivity, and nonhuman artistic practice from other disciplines.

The notion of personhood is deeply entrenched in legal and ethical discourses and hardly conceivable as contingent or shifting. Accordingly, and rightly so, the ability of every human being to be the bearer of rights and duties and thus a legal person is no longer in doubt today. The times in which this ability was dependent on certain genetic, mental or social conditions and in which people could be objects without rights seem unimaginable – however, a look at the history of law proves that these times did exist. For example, it was considered normal that women were not allowed to vote or work without their husband’s consent. There were lengthy discussions about every extension of the scope of rights that was introduced – some things may have been considered simply unthinkable and possibly ridiculous before they were realised. Interestingly, the idea of universal suffrage including women was criticised at the time with reference to animals, as it was argued that anyone who demanded the right to vote for women could also directly demand the right to vote for animals.[34]

A special case of the relevant extension of rights in this context is the one of legal persons: ‘natural persons’ (Section 1 BGB) and ‘legal persons’ (cf. Section 22 BGB) are endowed with legal capacity by law. However, legal persons are only created by a trick of the law. The legal entity construct is necessary and useful if several natural persons wish to pursue a specific purpose together, in particular a business purpose. Strictly speaking, however, they are and remain purely legal constructs for economic purposes. This shows that it is not biological characteristics that define who receives what rights and status. The affiliation with the human species is decisive under the current law and enables (only) humans to serve human interests through the fiction of legal persons. It is not much beside the point to consider this when thinking about potential pathways for advancing the standing of animals under law, especially given their equally ambivalent and negatively defined status.[35]

It is often noted that animals, even if they have some of the same abilities as humans, do not necessarily have the same interests as humans. For example, animals will in all likelihood have no interest in voting or owning property. However, this is also true for a number of humans. The existing legal instruments could be reconceptualized for animals, as Karen Bradshaw has already pointed out.[36] However, as Singer showed as early as 1975, the basic principle of equality does not require equal or identical treatment, but equal consideration. Thus, equal consideration for different beings can lead to different treatment and different rights.[37] From a copyright perspective, it must thus be acknowledged that an animal cannot directly use the potential economic gain from its copyright itself. However, any such profit could certainly be put to appropriate use, for example by benefiting organizations that are dedicated to the protection of nature and thus the habitats of animals.

These concerns all touch on the question of legal subjectivity. It is clear that the deeply rooted object status of animals in legal doctrine stands in the way of this endeavour.[38] It not only represents a legally significant obstacle to the reassessment of the question of the animal as a legal subject but also reflects a social agreement on the special position of humans and the hierarchical view of animals. Recently, however, this convention has increasingly been called into question in various contexts. This also has an impact on case law. More and more judgements, laws and regulations favouring animals can be found around the world.

For example, a recent decision by the Magdeburg Regional Court[39] shows that the perception of animals increasingly fluctuates between a ‘something’ and a ‘someone’. Based on the German penal code (Strafgesetzbuch, StGB), the court interpreted the unauthorised entry of animal rights activists into a pig farm to document conditions contrary to animal welfare law as an act of emergency aid (Section 32 StGB) and an act of necessity (Section 34 StGB) in favour of the pigs. The pigs were recognised by the court as ‘another’ within the meaning of Sections 32 and 34 StGB. The result was confirmed by the Higher Regional Court Naumburg in the appeal against this judgement.[40] In other countries, similar proceedings have recently been brought before the courts and the judiciary has been confronted with fundamental questions of legal capacity, personhood and the subjective rights of animals and nature in its decision-making.[41] In Argentina, for example, a chimpanzee was declared a “non-human legal person” by a court in 2016.[42]

A more specific case that has significant bearing on the question of animals under (German) law is the one of nonhuman artistic practice. On the one hand, artistry is usually regarded as a unique characteristic of humans, as discussed above. On the other hand, science and art have questioned the traditional human-animal boundary in recent decades. What is hardly denied to animals anymore is, above all, the sensory capacity that must be considered a prerequisite for aesthetic perception.[43] In relation to products made by animals, the question of animal copyright has therefore also arisen recently.

In a famous case from 2015, a public debate erupted in the USA following a complaint from an animal welfare organisation. A macaque monkey had taken a series of ‘selfies’ of itself in the Indonesian jungle with a camera set up for this purpose by British nature photographer David John Slater. The dispute centred on the copyrights to these images. The monkey had taken them unsupervised, deliberately and wilfully. Although Slater argued in court that he had given the camera to the monkey with the intention of generating photos, neither Slater nor the monkey were recognised as the author of the selfies, interestingly mostly because of doubts about the capacity of an animal to participate in civil proceedings.[44] The extension of the concept of copyright to an animal was therefore not covered by the court’s interpretation and would thus have had to be amended by the legislator. In 2015, the US Copyright Office clarified that a work can only be protected by copyright if it was created by a human being.[45] Therefore, the monkey could not be entitled to copyright.

And yet, defining human authorship as a necessary prerequisite for art excludes all creative expressions of non-human beings. Moreover, whether something is defined as art can always be derived from the discourse in which an artist or their work is embedded.[46] Previous efforts to include the creative products of so-called primitive peoples, children or mentally ill people in the history of art make it clear that the decision about art or non-art is always linked to the exercise of interpretive power. According to Jessica Ullrich, a clear animal-human boundary must first be defined in order to be able to ask in a meaningful way whether animals can also create art or whether only humans are capable of doing so – and this assumption has become questionable recently.[47] Current research considers the still unresolved status of animals as actors in the creation of art – as subsequent sections will show.

IV. Towards an Interdisciplinary Conversation

1. Animal Philosophy

Legal literature predominantly gives a negative answer to the question of the status as a person and thus also to any discussion of possible copyright consequences in the context of non-human creative activity. However, insufficient attention is paid to current research on the subject status of animals in other disciplines. We argue that a comprehensive consideration of the question of the animal in copy­right law is also dependent on taking this research into account and analysing it against the background of its possible legal significance.

The philosophical and ethical debate on general animal rights since the 1970s, which has been driven by Tom Regan and Peter Singer, amongst others, has been particularly influential in social and academic discussions. The focus of this work is on the ability of animals to have an autonomous experience as well as goals and desires that give them moral rights and render them subjects. This focus on the subjecthood of animals was subsequently taken up in political philosophy, for example in debates whether an animal person status and a theory of civil rights based on it is (also) morally necessary for certain animals in order to develop “new relationships of justice.”[48]

A different case has been made by Jacques Derrida, who has forcefully underlined the porosity of human-animal divides by showing that the concept of the animal in philosophy – and therefore also in anthropological and legal discourse based on philosophical ethics – is not based on real animals and their actions, but that the concept of the animal is used rhetorically so that the animals recede behind it. He coined the term ‘animot’ to indicate this (a play on words from the French word for animals, animaux, and the term for word, mot).[49] This is intended to show that humans can only ever describe animals and their actual intentions with words and within established discourses, without ever fully experiencing – or caring about – what is actually going on inside them. So-called posthumanist research has elaborated on this insight and may supply legal debates with arguments when it identifies outdated biologistic or untenable anthropocentric basic assumptions in the debate on animal rights. Significantly, Saskia Stucki’s ‘One Rights approach’ is based on a similarly non-anthropocentric conviction when it concludes that “(some) human rights can and should be extended to animals.” Stucki thus calls for “animal rights to be recognised as new human rights.”[50] However, the specific question of the copyright implications of the question of the animal also requires a look at the particularities of the artistic creation process and can therefore only be answered if current art historical research is also included.

2. Art Theory

In a classical understanding of artistic activity, evidence of the creation of art by animals would be contradicted by the fact that it pertains to a form of quasi-artistic activity at best. The devaluation of non-human activity, particularly in primates, appears to be functionally linked to the assertion of a ‘species identity,’ as was constitutive of humanist discourses on art and law, for example.[51] However, art historical research from the 19th and 20th centuries has also shown that, in their search for the origins of art, people were not only interested in the artistic skills of so-called primitive peoples, but also in those of animals. In particular, the buildings of beavers and the nests of birds were the subject of human interest. In 1900, for example, the art historian Karl Woermann published his multi-volume history of the art of all peoples and times. Among other things, it presents a colony of weaver birds’ nests, which is still discussed today as evidence of the artistic ability and skill of animals. It is thus recognised that animal actions can be aesthetically perceptible and are not exclusively accidental.[52]

Irrespective of how the artistic status of objects created by animals is assessed, an interdisciplinary discussion of the copyright-relevant creator principle must also reflect on the activity of animals as co-producers of art. Ullrich notes that such a reflection would require abandoning outdated ideas about authorship too. This development, well advanced in literary and cultural studies and certainly to be accelerated by current debates on artificial intelligence, acknowledges the widely established practice of human-animal collaborations in art, in which animals are seen and received as equal co-creators.[53]

3. Environmental Anthropology

Finally, an interdisciplinary view on animal and copyright law, which aims to make the crossing of disciplinary boundaries productive, must take note of anthropological research in which the (artistic) behaviour of animals is examined in a comparative cultural context and in relation to legal issues. In the views and practices of numerous Indigenous peoples in particular, animals are accorded subject status, legal capacity and legal or moral significance, which distinguishes them significantly from the view presented above.[54] In this context, the Ecuadorian and Bolivian consideration of nature in constitutional status has received particular attention. In 2008, Ecuador was one of the first countries to introduce rights for the natural ecosystem in Articles 10 and 71-74 of the Constitution and to declare nature a legal entity.[55] Similar developments can be seen in the efforts to render rivers and other significant natural places into legal entities, for example in India, where a court declared the rivers Yamuna and Ganges to be legal entities together with the establishment of a fiduciary representative structure.[56]

Similar insights are found in comparative studies of legal cultures. With regard to the question of the status of animals, the Indian sociologist Rita Brara reports that traditional cultural ideas, as formulated in the Upanishads, have an influence on contemporary Indian jurisprudence.[57] Similarly, Mrinalini Shinde and Kirk Junker describe the constitution of relevant “legal fictions” of animal personhood in India and in the context of the Uttarakhand High Court’s judgment in Narayan Dutt Bhat v. Union of India and Ors. in July 2018.[58] Most notably, in this context, legal discussion and decision were connected with questions of non-western ontologies and imaginaries, including spirituality and belief systems that granted personhood status to non-natural persons, for instance with regard to ‘divine animals.’ A comprehensive One Rights/One Health approach would be well advised to include such non-western legal knowledges, justice imaginaries, and juridical practices into its framework.

V. The Way Ahead: Legal Studies and the Environmental Humanities

In all their diversity, the approaches and insights referenced here, if only cursorily, have in common that they understand the legal standing of animals in direct connection with various forms of human-animal relationships and thus conceive of legal implications in a fundamentally different way than current German law and legal research. Their arguments are, however, not isolated or outlandish, but rather in increasing agreement with ethological and biological findings. These findings and the philosophical, art-theoretical and ethnographic insights outlined above can thus be expected to support a coherent and timely update for legal research that enriches and advances the current debate on the legal standing of animals under (German) copyright law.

One existing suggestion for the practical implementation from the legal literature is Stefan Papastefanou’s proposal to adapt core copyright law in such a way that the characteristic of the ‘personality’ of the creation is dispensed with. This would allow for the inclusion of more types of works under copyright law, from AI-based works to the artistic creations of animals. However, the doubts expressed there about granting animals corresponding rights, and the concern that such an adaptation would miss the intended scope, cannot be accepted.[59] The fact that animals have not yet been able to defend their morally ascertainable rights themselves or even claim them in court does not mean that we are not obliged to take their interests into consideration and protect them as best as we can. What is more, however, is that the proposal lacks in acknowledging the special status of animals, outlined above, by conflating animal agency and AI algorithms.

A different proposal has been made by Andreas Fischer-Lescano, who proposes a kind of guardianship for animals.[60] As animals cannot communicate in human language, a human guardian would have to speak for them. Such procedures have already been tried and tested – for example when it comes to the rights of people with dementia, or children. The interests of animals could be represented in a similar way. Such a form of representation could guarantee their rights – including copyrights – are duly acknowledged in court. The considerations in this paper emphasise the importance and appropriateness of such a proposal, but they also suggest that rethinking extant ways into legal fiction and guardianship might benefit from, and are incomplete without, ample consideration of lived alternative practices and revisions to the notions of artistic work, creativity and personhood developed by other disciplines and traditions of ethics and justice.

This links with the introduction of nature as a third legal subject alongside natural and legal persons, which has also been under discussion for some time. The proposal is to create a legal framework that no longer grounds in the hyper-separation between humans and animals but instead understands the natural as an overarching concept inextricably linked with a good and just way of life.[61] Concepts of multiple or shared authorship could also be considered here, for example for works that are created jointly by animals and humans. There certainly should be space for such proposals in a legal system that already recognises the legal capacity of abstract legal entities. This legal system is already designed in such a way that animals are also conceivable as sentient beings. International developments in particular show that legal systems can be modified accordingly. What is more, the ‘translation’ of all these considerations into legal language has already begun.[62] In the endeavour to further this work and advance legal theory and practice, the archives and toolkits of the environmental humanities will be indispensable. Programmes such as the UNESCO-MOST sustainability research alliance BRIDGES have argued along these lines and made the case for the importance of disciplinary cooperation in order to bring into conversation “diverse concepts, methodologies and policies connected to Planetary Wellbeing, including intergenerational justice and mental health, art and literature, spirituality and value systems, indigenous and traditional knowledge systems, foresight and futures thinking, as well as discursive and other practices of more-than-human conviviality and collaboration.”[63]

Jurisprudence could make an important contribution to developing such an inclusive perspective and research programme by developing and implementing binding regulations for dealing with artistic works by animals. In view of the above, it would be wrong to continue to ignore this issue or to relegate it exclusively to the remit of biologists, philosophers or ethicists. In recent years, more and more supposedly immovable characteristics of being human have been abandoned, so that the porosity of the boundary between humans and other living beings has become more and more visible. In terms of legal doctrine, it is not impossible to grant subjective rights to non-human beings, even if they are not capable of culture in the human sense, i.e. they are not recognised as having human dignity.[64] By acknowledging a more-than-human dignity,[65] however, the inclusion of animals as legal subjects in our legal system would no longer represent a contradiction, but a consistent further development of progressive legal and moral practice. The self-awareness that humans are biologically animals can be the basis for a new perspective on animals and nature and thus the cornerstone for the reorientation of the legal system.[66] It is less about a radical innovation than about rethinking human relationships with the living world and the human treatment of animals. Authorship for animals should then neither be unthinkable nor impossible.

Copyright (c) 2025 Julia Kessel, Roman Bartosch

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