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Saturday, May 28, 2011

Can you copyright a nose job?

There’s been a lot of discussion in the blawgosphere recently about the Mike Tyson/Hangover 2 tattoo case, and the underlying question of the copyrightability of tattoos.  In the context of that discussion on an IP profs’ listserv, Lior Strahilevitz posed a related question:  If tattoos are copyrightable as works of authorship fixed on the human body, shouldn’t nose jobs also be copyrightable?  Is there a principled copyright distinction between the Mike Tyson face tattoo and, say, Bristol Palin’s recent rhinoplasty?

Before exploring this question, let me offer some quick background.  Not all products of the mind are copyrightable.  Works of authorship have to be original and fixed in a tangible medium of expression (TME) in order for federal copyright (though not necessarily state common-law copyright) to vest.  Most fixations of works of authorship are made in familiar media—canvas, a book, the memory of a computer—and as long as they last for more than a transitory duration, fulfill the fixation requirement. 

This raises three questions, each of which have been raised on the IP profs’ listserv.  First, is a nose job a work of authorship?  Second, is a nose job fixed in a tangible medium of expression?  And finally, is a nose job original?  I consider each of these points below the fold.

First, a few writers asserted that a nose job isn’t a work of authorship, full stop.  Works of authorship are listed in section 102(a) of the 1976 Copyright Act, and unsurprisingly, “nose job” isn’t among them.  One might conclude thus quickly that as a simple matter of statutory construction, the 76 Act excludes nose jobs.  This strikes me as far too hasty a conclusion, for two reasons.  First, section 102(a)’s list of works of authorship is inclusive, not exclusive.  The text says, “works of authorship include” the relevant categories, not that works of authorship include only the referenced categories.  It seems pretty clear from this (and other aspects of the 76 Act) that the framers wanted the statute to remain flexible in terms of what counted as a work of authorship.

In addition, there’s a category listed in section 102(a) that does seem to fit nose jobs reasonably well:  sculptural works.  Where artists fix their original ideas in three-dimensional form, whether via marble or clay, we have no problem calling the resulting work a sculpture.  Why should the human body be any different?  I can think of some prudential objections that I’ll elaborate below in discussing fixation, but as a textual matter I don’t see any basis for this distinction.

The final point some have raised with respect to whether nose jobs can be works of authorship is that surgeons are not “authors.”  They are more like craftspeople, because they don’t infuse their work with the sine qua non of copyright, originality.  This is a plausible argument, though I think also too hasty, but it really seems to belong in the discussion of originality, which I’ll get to below.

A second objection to the copyrightability of nose jobs may be that they are not valid fixations in TME.  The Second Circuit recently decided a case that nicely laid out a two-part test for what constitutes a valid fixation.  A fixation must persist in some physical form, such as a book or canvas.  A nose is clearly tangible, and easily meets this standard.  A fixation must also meet a duration requirement; that is to say, the fixation must persist for some minimum time in order to be valid.  Ephemeral fixations such as in skywriting or the very brief memory of a computer would not count.  Here, too, a nose seems clearly to meet the relevant standard, since rhinoplasty lasts until the face of the recipient turns to dust. 

Some writers have suggested that the human body is not a "medium of expression."  This doesn't strike me as valid.  We use our bodies to express ourselves all the time in ways too numerous to list.  And artists sometimes use others' bodies to express themselves, such as where photographers use models to acheive a certain aesthetic effect. 

Now let’s consider the final doctrinal hurdle for the copyrightability of nose jobs:  originality.  Copyright originality means that there must be a modicum of creativity in a work, so that if it is a slavish imitation of the outside world that reflects no input from the author, then it does not merit protection even if it is the product of considerable effort.  Exact digital images of cars, for example, have been held to lack the requisite originality to merit federal copyright protection.

Nose jobs, it seems to me, may well lack originality in the majority of cases.  The point of most nose jobs is not to create a creative or distinctive look, but rather to make the patient’s nose fit some preexisting (usually, smaller) archetype of what a nose should look like.  This is the antithesis of originality; it’s an attempt to make the patient’s nose less, not more, distinctive and original.

It is, however, not descriptively accurate as applied to all nose jobs.  Most nose jobs probably fit this category, but some patients actually do want a nose job to be distinctive and set them apart from the crowd.  Consider, for example, body modification.  This practice involves alterations to the body including piercings, tattoos, and plastic surgery in order to attain outrageous and undeniably distinctive (if often grotesque) results.  This presents a much harder case for the copyrightability of plastic surgery.  If a patient for whatever reason wants to have a nose job to look freakish rather than to fit in, then one might have to concede that there is originality there, and such body modifications may well be copyrightable.

Beyond these doctrinal points, though, lies a prudential consideration that’s well worth considering, and has already been gestured at by an eminent commentator who’s come out against the copyrightability of tattoos.  Even if some (though probably not most) nose jobs may be original, validly fixed works of authorship as a matter of statutory text, as a prudential matter the idea of allowing the human body to count as a site of fixed works of authorship may be disastrous.  It would open the door to, say, copyright in hairstyles or even ripped musculature.  In such a world, any picture or film that captured an image of any person could--perhaps even would--subject the photographer or videographer to infringement, with attendant financial risks (given the substantial statutory damages associated with even inadvertent copyright infringement).

And this, in turn, raises the specter of ceding rights in one’s body to another person, since it's the author of a work of authorship, not the object in which the work is fixed, in whom those rights vest.  If a plastic surgeon has the copyright in my nose, then am I constrained in my ability to go in public to display it?  Do I have to get permission to have photos of my face taken?  And since copyrights can be sold and re-sold, I may not even know the person who has rights that constrain the use of my own body. 

This point is all the more concerning to the extent that some works of visual art are also subject to the moral rights scheme of the Visual Artists Rights Act, which could mean that surgeons (or whoever owns the copyright in the relevant nose) have rights of integrity and attribution concerning the patient’s nose, so that they might have a cause of action should the patient want to alter their nose (with more rhinoplasty or a nose ring) or lie about its origin (and I suspect many patients indeed want to downplay having had a nose job).

At the end of all this, what’s the verdict on the copyrightability of nose jobs?  I think many, probably most, nose jobs would fail because they’re insufficiently original to merit copyright protection.  Those few that do possess sufficient originality, though, present a harder case.  While they do seem to meet the relevant statutory standards for copyrightability, the prudential considerations raised by accepting the idea of owning works of authorship fixed in the human body are concerning, and I think may counsel in favor of a categorical rule that fixations in the living human body are not valid fixations for copyright purposes.

And this final point, if persuasive, returns us to the subject matter from which this post originally grew:  the Mike Tyson tattoo case.  Most commentators (self included) readily assumed that tattoos are valid fixations, and if original, merit copyright protection.  But if there should be a bright-line rule precluding copyrighted works fixed in the human body, then this would seem to exclude tattoos from the realm of valid fixations as well.  This does not mean, of course, that tattoo artists could not copyright their designs, but only that unauthorized tattoos of those designs would not be actionable because they would not count as “copies” within the meaning of the Copyright Act.

Posted by Dave_Fagundes on May 28, 2011 at 01:55 PM in Culture, Intellectual Property | Permalink

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Agreed on the doctrinal points. But I think the merger, useful article, and other 102(b)-related doctrines might come into play here too.

On the larger point, although I'm happy to see the tattoo/copyright intersection getting some attention, I have to say, much of the handwringing over the past few days strikes me as overblown.

In the interviews I've been conducting with tattoo artists for a paper on copying norms within the industry, I can say with some confidence that the overwhelming majority of tattoo artists have no interest in constraining their clients or anyone else from engaging in public displays of their works, or from having their photos taken, or any other use that does not directly conflict with the artist's ability to bring in more clients.

There is a sense in which tattoo artists understand themselves as relinquishing much of their control over their work once it walks out the door. In some sense, they have an innate appreciation for the exhaustion doctrine. This is sort of distancing is understandable for artists who create custom works for clients that they often never see or interact with again. The only form of copying that seems to universally strike tattoo artists as objectionable is copying within the community by other artists, in other words, their direct competitors.

That's not to say it isn't theoretically possible that, for example, a VARA claim could lead to an injunction preventing an individual client from exercising autonomy over her body. But we have lots of other doctrines aside from the blunt tool of protectability that could step in and prevent that sort of outcome. More importantly, I think, the facts on the ground suggest that sort of aggressive enforcement is highly unlikely in this context.

Posted by: Aaron Perzanowski | May 28, 2011 4:18:03 PM

Much of the subject matter of the IPProfs thread was covered earlier on Concurring Opinions, with me playing Lior's part, and Aaron playing himself.

Posted by: Mike Madison | May 28, 2011 5:18:47 PM

@Aaron: Interesting point about the practical irrelevance of copyright to tattoos. The idea that this is a sui generis situation seems particularly plausible in light of the fact that tattoos have been around forever, and this issue has only just come up. Related, this paper you mentioned about tattoos and IP norms sounds great, too. I look forward to checking it out.

@Mike: I did not see that thread, but now that I do, yes I see that the issue of plastic surgery was mentioned there in the context of the other issues. I wanted this post to focus in more detail on the nose job issue separately from the general tattoo controversy, though they are clearly related. P.S. Viva el Barca!!!

Posted by: Dave | May 29, 2011 12:06:35 AM

Almost every image on the "body modification" page you linked to originated (or is otherwise subject to- and violative of the terms of use) at www.bmezine.com.

That's particularly unfortunate, because there are quite a few experts on the ethics and legality of body modification affiliated with that site. By choosing to highlight a single blog post criticizing these creative endeavors without explanation, you failed to connect with the community most versed in the relevant issues. IP law regulates and advances culture- when you ascribe values like "grotesque" to those who push the boundaries, you hold yourself out as someone who refuses to acknowledge the interplay between artistic and social innovation.

As for a nose job, even if the healed results were so capable of prediction as to reach authorship and so capable of being duplicated with precision for potential offenders to cross the idea-expression divide, IMO noses still have too much utility to be afforded protection.

Even if all those hurdles were breached, surgeons would be creating at best derivatives of exemplars provided in software modeling programs and photographs.

Nimmer sold out dramatically. My reading suggests he was trying to telegraph that, communicating his (weak) points in as absurd a manner as possible. What's beyond me is why WB didn't just make an implied license argument, which would have required far less abstraction, has far more precedent, and wouldn't have forced the IP community to bear witness to his embarrassment.

Posted by: B | May 29, 2011 12:49:08 AM

On the subject of rhinoplasty, I was told on several occasions that it was not uncommon to hear at house parties in an affluent Boston suburb a guest ask another guest if Dr. _______ did him/her. Presumably Dr. _________ had a distinctive, recognizable style. (I'm reminded of the "Jim Did It" sign company.)

Posted by: Shag from Brookline | May 29, 2011 7:03:56 AM

@B: The link was meant only to provide a quick visual illustration of some examples of body modification. The post isn't primarily about that practice, so I don't think the passing reference is terribly freighted with import one way or another. (Nor, for that matter, is the term "grotesque", which seems to be a descriptively accurate way to describe the results of at least some body modification.)

As for the nexus of copyright and pushing social boundaries, I'm actually advocating just that in the post. My reservations about treating the body as a tangible medium of expression (in a copyright sense, anyway) lie in the innovation-suppressive effects such a move could have. My sense is that the body is a site that should remain free of regulation by copyright, in order to encourage cultural velocity.

I appreciate the reference to bmezine.com, though. Discussions of the legality of body modification sound really interesting, and I'll be sure to check them out.

@Shag: That's really interesting. Maybe there's a better case for originality in nose jobs than I've been assuming.

Posted by: Dave | May 29, 2011 10:59:18 PM

Nose jobs already have names. See the entry for Dr. Irving B. Goldman From Wikipedia, the free encyclopedia

"Irving B. Goldman (1898-1975) was an otolaryngologist and plastic surgeon. Dr. Goldman created and taught a popular rhinoplasty course at Mount Sinai Hospital (New York). The course focus was the "Goldman Tip," a rhinoplasty technique that is still popular with surgeons today."

Posted by: Don | May 30, 2011 12:10:34 PM

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