On Tuesday, May 27, 1997, Richard J. Greenstone <richard[_at_]rjg.com> wrote:
>
> Jamie Powers <jamie[_at_]srgpe.com> wrote:
> >
> > On 05/21/97, G. de Bruin <blueger[_at_]worldaccess.nl> wrote:
> > >
> > > Can anyone tell me if a plastic surgeon (in the USA) has a copyright
> > > on his work? So, if he or she gives you eg. a new face, is that work
> > > protected as a copyrightwork? And if so, how does that relates to the
> > > operated person?
> > >
> > > I really tried to find the answers in the Dutch law, but here in
> > > Holland that problem is not solved yet.
> >
> > Copyrighting surgically created faces is interesting. In the US it may
> > not fly because of 1) existing legal doctrines - functionality and the
> > requirement of originality come to mind, and 2) public policy
> > considerations which might operate to bar protection for these plastic
> > surgeon creations.
> >
> > First, the originality present in a recreated face would be minimal.
> > The elements that would likely be claimed - an aquiline nose, the
> > curve imparted to a cheek bone, for example - would likely be either
> > non-original (lacking the mere scintilla of originality the Copyright
> > Act requires) or dictated by the function to be performed. If the form
> > tracks the function perfectly, you will have an insurmountable problem
> > finding copyrightable expression.
> >
> > Second, public policy might operate to bar such protections. Some
> > plastic surgery (reconstructive) is essential and the medical
> > complications and likely costs associated with surgeons having to make
> > sure they are not doing a "Lambruzzi Hollywood Eye-lift" (pure fiction,
> > no offense intended) would be serious. The chill on surgeons could be
> > severe and contrary to public policy. The Lasercomb decision of the
> > fourth circuit launched the concept of "misuse of copyright" and while
> > not exactly applicable to this situation, the concept has some value
> > here.
> >
> > Anyone out there with other knowledge of any copyright protection
> > being extended to human form/features?
>
> The fixation requirement might also pose a problem given the likelihood
> of sagging over a period of time.
Why stop with plastic surgery? Given the breadth of what can be copyrighted under U.S. law, there are even more amusing/disturbing possibilities. For instance, I opened a recent copyright presentation with a "joke" about whether I should be worried about my parents owning a copyright on my appearance. I'm tangible and original enough, I suppose.
If they do, think of the ramifications. By aging, I may be creating an unauthorized derivative work. Ditto when I have children. Cloning implicates the reproduction right, of course. And I don't have to tell you about all of the infringing public displays and performances that we all engage in.
Aside from an implied license, I guess our only hope is the first sale doctrine. However, even that leaves the possibility that author's rights might apply. Better not get that tattoo.
Keith
P.S. This is the trouble we get into when the *policy* behind copyright is made subordinate to the *economic incentive* used to promote that policy.
J. Keith Harmon, Esq. (614) 688-4578 Project Director (614) 292-1992-fax ECLIPS harmonjk[_at_]osc.edu 1224 Kinnear Road http://www.osc.edu/eclipsColumbus, Ohio 43212
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