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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
Can there be copyright in one's own bottom? And what about a bottom pose?
Reviewed by Eleonora Rosati
on
Tuesday, November 04, 2014
Rating:
Reviewed by Eleonora Rosati
on
Tuesday, November 04, 2014
Rating:
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Posts
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"?)
ReplyDeleteCara Eleonora:
ReplyDeleteOne 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
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.
ReplyDeleteQuite. 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!
ReplyDeleteRe 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).
ReplyDeleteKim'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.
ReplyDeleteI hope there is copyright.
ReplyDeleteI 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...
Something reminds me of an advertising campaign, and a TM Registration for the Mark "Does My Bum Look Big in This?
ReplyDeleteIs it perhaps the pose?
It is a fine subject for anal ysis.
ReplyDeleteAndrea,
ReplyDeleteI 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.
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.
ReplyDeleteExample.
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.
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?
ReplyDeleteAlready out - see papermag.com
ReplyDeleteWondering how much KK might be charging for a licence, and whether payment might be made on a per anum basis
ReplyDeleteAdding a further sparkle to this story, is the latest Asda champagne ad parody or copyright infringement?
ReplyDeletehttps://www.facebook.com/couponmumuk/photos/pb.614718415267965.-2207520000.1416175826./767806503292488/?type=1