When dealing with copyright protection, the starting point of the Italian legislation is the Italian Copyright Law (Law n. 633/1941), whose article 1 establishes that the protection should concern every work of the mind belonging to the fields of literature, music, figurative arts, architecture, theater, and cinematography, regardless of the mode or form of expression.

The above-mentioned definition explicitly indicates several works of art to which the protection is granted; nevertheless, it’s not deemed to be an exhaustive list and, according to the doctrine and case law, the protection should be extended to all other intellectual creative works.

On the other hand, even though the object of protection is reasonably broad, there are still some requirements that must be fulfilled.

First of all, in order to be protected, ideas on their own are not enough. There has to be an externalization of the author’s intention, meaning a form of expression of the idea which is the result of the artist’s individual choices and arrangements.

Secondly, the work needs to be a creative one, hence encompassing a minimum level of novelty and originality. Therefore, the creation must result from an intellectual process of the author, and it needs to reflect their personal view in a way that is easily distinguishable from the already existing similar ones.

Finally, when it comes to copyright it is fundamental to understand who, as a matter of fact, is the subject entitled to hold such right.

Article 8 of the Italian Copyright Law states that the author of the work is, unless it is proven otherwise, the one who is indicated as such in the forms of use, or, is announced as such in the acting, execution, representation or radio broadcast of said work. Generally speaking, the author is the person who assumes the idea as well as the planning and in many cases, but not always, does the execution of the work. For example, if one thinks about art installations, there is no doubt that the author remains the artist who had the idea and made the project and not the person who materially installed it.

At first sight, the notion of authorship could seem sufficiently linear: the one (or ones) who has the idea and is able to express it acquires the right. On the contrary, in recent times, more than one issue related to authorship arose, requiring a deeper analysis of the concept.

2. The Macaque Case: can authorship belong to a non-human being?

Between 2011 and 2018 a dispute concerning the ownership of copyright on several pictures realized as a selfie by a macaque (the “Monkey Selfies”) arose in front of the US District Court for the Northern District of California.

The lawsuit involved a seven-year-old macaque named Naruto, represented by PETA, a worldwide animal rights organization, and Slater, a wildlife photographer. Both parties claimed to have the right to be considered as the author of the “Monkey Selfies” which were published online by several blogs without asking for permission and taking for granted that, since the shots were taken by an animal (and thus by a non-legal person), no payment for fees and authorization were required.

Therefore, there are three different scenarios that could arise from the dispute. The first one sees the photographer as the author of the picture, being the one who intentionally left the camera at the animal’s disposal with the intention to obtain some pictures. On the other hand, the macaque is the one that materially took the picture and thus the copyright should belong to the association representing the animal.  Lastly, the court could rule that non-human creators are not capable of holding a copyright and thus no protection is granted; in such cases, pictures are in the public domain meaning that they can be freely used by anyone without the need of any authorization.

What is interesting about the case at stake is that the District Court ruled that Naruto lacked standing under the Copyright Act, thus declining even to discuss the merit of the issue, leaving open the major question: if an animal takes a photo, does anyone have rights to that photo?

Even the appeal proceeding did not provide an adequate solution to the matter since the parties decided to settle.

However, in light of the abovementioned notion of authorship, it can be said that the author, in order to be considered as such, firstly needs to assume the idea and then to implement it giving a creative contribution to the point of showing their personal footprint which is certainly not the case of the macaque. 

This approach was indeed the one adopted by the US Copyright Office which held that only works created by a human can be copyrighted under United States law, which excludes photographs and artwork created by animals or by machines without human intervention.

These considerations bring to the conclusion that no animal can be considered the author of a copyright-protected artwork. On the other hand, does that mean that the photographer is the one to be automatically considered as such? No, he would still need to demonstrate that the picture was not a fortunate coincidence, but the result of his premeditated actions which resulted in an original work encompassing his creative contribution.