From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Tuesday, 4 November 2014

Can there be copyright in one's own bottom? And what about a bottom pose?

Kim Kardashian's
bottom pose
Yesterday this Kat discovered an intriguing piece of news which raises an issue of sure interest to, say the least, copyright aficionados: is there copyright in a 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.

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?

Jen Selter's bottom pose
In other words, could you argue that in certain cases breast or bottom implants [the latter appears not to be the case of Kim's though, who just had her bum injected, not silicon implants applied] are a "production in the artistic field" that is sufficiently original?

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]."

Merpel's bottom pose
Is there copyright in a 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].

In Painer [here], the CJEU stated in fact [paras 90-91] that: 

"[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

This latest Kim Kardashian' news is not one of a completely bogus claim, at least under EU law. So, similarly to the other campaign fellow Kat Alberto launched earlier this year in favour of Quentin Tarantino, this might be another case in which a European court may find in favour of Kim and her bottom poses. After their Florence wedding and Paris fashion week attendance, Kim and Kanye could be welcome also in one of our beautiful European courtrooms, so: #KimcometoEurope?

15 comments:

Anonymous said...

While there is perhaps a minimal level of "intellectual creation" originality involved in Kim's selfies, the level of protection accorded to such snaps should be proportionate, i.e. limited to protection against copying of those particular selfies. The suggestion that she could prevent others adopting a similar pose and taking a photograph of themselves would be taking the level of protection much too far, into the realms of idea rather than expression. Whereas in the Red Bus case there were technical operations involved to produce a near copy of a work that was more than just a simple photo, in this case it is just point and click. (Coming back to the pose itself, I wonder if she could argue that it is a protectable "performance"?)

Uncle Wiggily said...

Cara Eleonora:

One could say that Ms. Kardashian’s position on all this is rather cheeky. Perhaps for UK purposes, she should colour her bottom or whatever other putatively and purportedly protected body part red and the rest of her pictures in shades of grey. Then we could have some “red butt” jurisprudence in addition to the “red bus” doctrine.

Best regards,

Uncle Wiggily

Steve said...

I'm reasonably sure that others have adopted said pose prior to Ms. Kardashian. Therefore, I suppose the first question is whether she is indeed the originator of the pose or if she, herself, is infringing the pose of another...in which case it would be an utter minefield to try and fathom who owns the original pose.

Anonymous said...

Quite. We might find a plethora of claimants asserting spurious but hard-to-disprove rights to an underlying pose. The advent of the buttock troll, indeed!

Andrea Rush (arush@blaney.com) said...

Re Canada: Consider work of “artistic craftsmanship… includes (ie open ended definition) works of sculpture. Ask anyone who spends some time in the gym with a personal trainer - the definition fits. However, taking a page out of the interface between copyright law and patents (noting the creeping overlap of approaches), although the subject matter may have met the benchmark test of novelty, query whether copyright was meant to protect higher life forms. (noting the dilemma in the Harvard Mouse case, differentiating between higher and lower life forms in Canada).

Ron L said...

Kim's lawyers should consider adding a trademark infringement claim under Sec 43(a) of the U.S. Lanham Act (which deals with "false deignations of origin") on the basis that her bum has acquired a secondary meaning.

Meldrew said...

I hope there is copyright.

I would like to see the form of order for delivery up that might follow.

Of course, the copyright owner may need to seize and detain the infringing copy...

MaxDrei said...

Something reminds me of an advertising campaign, and a TM Registration for the Mark "Does My Bum Look Big in This?

Is it perhaps the pose?

Anonymous said...

It is a fine subject for anal ysis.

Michael Factor said...

Andrea,

I think you are correct. injection, exercise and corsetry may sculpt the posterior and so this is a sculpture and can be protected by copyright and possibly by a design registration.

It would be terribly embarassing for an IP practitioner to inadvertently infringe someone elses protected rear end.

I have therefore decided to run a clearance service. Practitioners are invited to send me photos of their rear ends and I will do a clearance search for them.

natasha said...

Copyright law only protects the way ideas are expressed in a particular creation, but does not protect the underlying idea. This means that there can be many different works about the same idea and all of them will be protected by copyright, as long as they express this idea in an original way.

Example.
Your teacher may ask you and your classmates to draw a picture of a dog playing with a ball. Even though the idea (dog playing with a ball) is the same, all of you will choose different colors and shapes to express (draw) the dog and the ball. Though the drawings are expressions of the same idea, they will all be original and therefore protected by copyright. An idea (such as a dog playing with a ball) can be expressed in many different ways. Copyright only protects the expression of the idea, not the idea itself.

My Opinion
In my opinion Kim’s selfie is an “expression” and can be granted protection under copyright, but on the other hand “POSE” is an Idea and it can’t be granted protection under copyright because an idea can be expressed in many different ways. Copyright only protects the expression of the idea, not the idea itself.

Anonymous said...

Any plans to update the photos on this topic to include the latest "view" of KK? If so, perhaps you could give an advance warning?

Anonymous said...

Already out - see papermag.com

Anonymous said...

Wondering how much KK might be charging for a licence, and whether payment might be made on a per anum basis

Anonymous said...

Adding a further sparkle to this story, is the latest Asda champagne ad parody or copyright infringement?

https://www.facebook.com/couponmumuk/photos/pb.614718415267965.-2207520000.1416175826./767806503292488/?type=1

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