Can there be copyright in one's own bottom? And what about a bottom pose?
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| Kim Kardashian's bottom pose |
A few days ago The Guardian reported that, according to very serious "legal periodical" Closer magazine, "TV and social media personality" Kim Kardashian is unimpressed with bottom copycat by "internet bottom sensation" Jen Selter. Apparently the latter has been posting photos of her bottom on Instagram, posing as only Kim thought she was able to do.
What a shame.
What a shame.
According to the very humourous Guardian reporter, "one of the gangplanks of Kim Kardashian’s global celebrity [is] her nonpareil ability to take photographs of her own large buttocks with a cameraphone." So now “Kim thinks Jen copies all her poses … she is fuming as she feels her curvy bum is one of her most unique selling points and feels that Jen is just trying to cash in.”
This why Kim has asked a bunch of Los Angeles lawyers to see whether anything can be done copyright-wise to stop this unacceptable behaviour.
Can Kim claim copyright infringement over her poses?
While this Kat is leaving the response under US law to US lawyers, what could happen under EU and UK copyright laws?
Is there copyright in a body part?
Well, the immediate response to this should be 'no', because a body part (one’s own bottom, in Kim's case) is neither a work in the Berne sense nor is the "author's own intellectual creation" in Infopaq terms. While this appears pretty straightforward with regard to natural body parts, would the answer be the same for body parts that have undergone, say, plastic surgery?
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| Jen Selter's bottom pose |
In principle this Kat does not see why this could not possibly ever be the case, although there might be limitations to copyright protection [similarly to what was stated in this Belgian case as regards tattoos] on consideration of the peculiarities of the medium [human body] to which these works are attached.
As regards the particular category of copyright-protectable subject-matter a body implant belongs to, this Kat finds it reasonable to think that this may be that of artistic works. However, determining the exact subject-matter a work belongs to may be no longer so vital, as in Infopaq and its progeny the Court of Justice of the European Union (CJEU) suggested that closed subject-matter approaches [as is still the case under UK law: see s1(1) of the Copyright Designs and Patents Act 1988] may be no longer compatible with EU law [see here and, for a longer Kat-assessment, here]. As learned Arnold J stated in SAS v WPL [para 27]:
"In the light of a number of recent judgments of the CJEU, it may be arguable that it is not a fatal objection to a claim that copyright subsists in a particular work that the work is not one of the kinds of work listed in section 1(1)(a) of the Copyright, Designs and Patents 1988 and defined elsewhere in that Act. Nevertheless, it remains clear that the putative copyright work must be a literary or artistic work within the meaning of Article 2(1) of the Berne Convention: see Case C-5/08 Infopaq International A/S v Danske Dagblades Forening [2009] ECR I-6569 at [32]-[37]."
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| Merpel's bottom pose |
Coming now to the vital question whether there may be copyright in a pose, this is sort of a slippery slope, as we are right at the crossroads between (unprotectable) ideas and (protectable) expressions.
However, the pose of a subject may contribute to the overall originality of, say, a photograph [or, as Kim knows well, a selfie].
"[T]he photographer can make free and creative choices in several ways and at various points in its production. In the preparation phase, the photographer can choose the ... the subject’s pose"
Along with other "free and creative choices", the subject'pose may concur to the overall originality – and hence protectability under copyright - of a photograph.
So, most of Kim Kardashian's selfies could be potentially eligible for copyright protection.
Infringement?
Could Jen Selter's selfies be considered as infringing on Kim’s copyright? Why not, says Merpel. Particularly if Kim was able to demonstrate that the "internet bottom sensation" does not have a case of "independent creation" she could well succeed in her claim. As the Red Bus case [here] taught us in fact, if the "the common elements between the defendants' work and the claimant's work are causally related", ie "they have been copied", this may lead to a finding of infringement.
In conclusion
