Postmodern art has challenged the traditional boundaries of creativity and art to the extent of using the human body as creative material for its artistic pieces. The body has gone beyond being a central theme in the arts be part of the works themselves. Any evolution in creative practices requires Copyright Laws to adjust; the question is to evaluate how Copyright did so when confronted to Body Art.

If more popular nowadays, this reliance on the body in the arts is not new. Makeup artists, for instance, have been relying on the body, or more specifically human faces, long before the rise of postmodern art. Make up art was the first and so far only case the British Courts had to litigate which dealt with the human body as support of artistic work. (1) This case also known as the Adam Ant’s case ruled that make-up could not be protected by copyright because the work was not permanent, and therefore, failed to comply with the fixation requirement. Focusing on the fixation requirement this decision left out the question of the ‘copyrightability’ of the body. The fact that the Court does not specify that the body cannot be part of a copyrightable work suggests that it could still be a possibility, provided that the fixation requirement is satisfied.

The art of tattoos certainly solves the problem of permanence and fixation. Although legal disputes over tattoos have not been brought before British judges, the issues of copyright authorship regarding tattoo artists have made their way to the courts in the United States. (2) The work of tattoo artist satisfies every condition imposed by copyright, however, granting legal authorship over works displayed on the work of individuals was found to be disproportionally impinging the latter’s human rights. Here again, the question of the ‘copyrightability’ of the body has been shadowed by another issue: human rights

Tattoos solve the problem of fixation and if the tattoo artist is displaying his/her work on his/her own body, the clash between copyright authorship and human rights also disappears. In this context, could the artist copyright his/her body? Can the body be part of a copyrighted work? Can the body be the surface of a creation protected by copyright? With the growth of body art, post-modern practices and the trend of tattoos, are we likely to move towards regulating human canvases?
The body can be involved in an artistic piece at different levels. It can be the support of the work and fulfil the exact same role as a piece of paper or canvas would. This is, for instance, the case for tattoos where the design could have been drawn on a piece of paper without – in most cases – impacting the shape or structure of the work.

(1) On the other hand, the body can be seen as an integral part of the work, not just a mere surface. It can be shaping the work so much so that the work could not rely on any other surface but the human body. In this situation the issue of copyright might be further complicated.
(2) Given the different functions of the body, its in each hypothesis will be examined separately.
(1) The body as a surface supporting the work

As underlined before, the situations of tattoo and make-up artists are very similar. Although the judges’ decisions took different path in denying the possibility of these artists to protect their work with copyright, these cases present human skin as the canvas of their work. Focusing on the lack of fixation or the clash with the individual’s own freedom and human rights, these decisions did not provide much information as to the possibility of copyrighting human skin. The situation where none of these issues are involved is, however, not just theoretical and can or does have a reality in practice. As mentioned before, if the tattoo artist performs his/her designs on his/her body, then there is no fixation problem or clash with human rights. The artists’ interests in receiving authorship line up with the subject’s freedom of movements and right of privacy. This is probably one example among many others that could be found in the ever so creative body art or post-modern movements. What will copyright have to say in this case?

In this situation, the body, or more precisely the human skin, is only fulfilling the role of canvas. The body is being a mere surface for the work and is operating in the exact same way a sheet of paper or a wall would, in a more traditional artistic creation. Here, the body can be seen as a rather neutral medium supporting, but not impacting, the work. Copyright Laws disregard the type of support works are relying on when awarding authorial rights. The only specification the law requires from the artists is for the work to be fixed, tangible, and permanent so that the work can be considered as “fixed in writing or otherwise”.(3) Nowhere does the law specify the substance of the material the work needs to use or be made of. This is certainly the reason why the debate remains open regarding the ‘copyrightability’ of tattoos and why the British Court did not base the Adam Ant’s decision on the fact that the make-up was displayed on human skin but on the fact that the work was not permanently fixed. The law only attaches importance to the characteristics of the surface onto which the work is fixed and how it is fixed, but not to the substance of such surface itself. Thus the human skin might be able to support a copyrighted work and, therefore, could be considered copyrightable itself, as long as the work is permanently fixed on it.

(2) The body as part of the work

This section will examine the hypothesis where the human body when the body is more than a surface and is a part or component of the work. (a) It will also mitigate the previous developments which argued that the skin or the body could fulfil the role of “neutral medium”. (b) The ‘copyrightability’ of such works involving the human body is therefore all the more important to investigate. (c) For decades, the law has engaged with choreographic works which highly rely on the body but yet are protectable by copyright. Considering this, the interaction between copyright and the art of choreography is worth having a look at. (d) Finally, even though there are examples solving the problem of fixation and clash with human rights, these are not the only hurdles body art artists would have to pass to have their work protected. The originality requirement might also be problematic when their works are dominantly relying on the human body’s shapes. (e)

(a) Considering the body as part of the work, rather than a surface onto which the work is fixed, takes into account the creative or interpretative impact the body can have over the work, so much so that the body becomes part of the latter. The body can fulfil a greater role than that of a surface. While the skin would only play the role of a template, the body can bring in more to the work. Indeed, the human body itself has shapes, curves, embodies symbols and meanings. In this respect, the body can well be in the position of shaping both the concept and the form of the work.

(b) These remarks inevitably lead us to ask when and how the body can be seen as being the support of the work only. It can be claimed that the body can never truly be a template, or as plain and neutral as a sheet of paper, because the body is naturally and culturally carrying meanings and shapes. This argument would dismiss the assumption that even the skin can operate a mere surface of a work, since the skin cannot come without the body it is attached to. A work involving the body would irremediably be conditioned, influenced, affected by the body, therefore there could never really be a real human canvas.

(c) Now that the body has been recognised as doing more than what a sheet of paper would do, can the work still be protected by copyright? Can copyright regulate works that actively involves and relies on the body? Can someone copyright part of a human body?
The law does not specifically specify that the human body cannot be involved in protectable works. Moreover, copyright laws are written in generic and general terms to avoid being involved in subjective artistic choices such like the type of materials or colours used in the work. This can be seen as an opportunity for the body to be copyrightable material.
One might argue that the body can never be protected because this would mean reducing it to the status of “object” or “property”. The Adam Ant’s jurisprudence and the strict condition of fixation reaffirm the notion that copyright is applied to objects and objects only by requiring the work to be permanently tangible. The body cannot be considered as an object so much so that the body cannot be copyrighted and any work relying on the latter may be refused copyright protection. Here, the syllogism is simple: copyright protects creative objects; the human body is not - or cannot be- an object; therefore, the body cannot be copyrighted.

(d) Nonetheless, it can be argued that the law has already departed from this rule in order to accommodate choreographies in the categories of protectable works

(4) Choreographic work is the only category of work that entirely relies on the body of its performers to be accessible by the audience. If notated before the performance the work will be considered by the law as existing before the performance, but the work is only fully accessible and perceptible when performed. A choreographic work needs the performers to embody it, or put differently, a work need to be ‘placed’ on their bodies for it to be perceptible by the audience. Dance is a performative art in its nature, therefore, the involvement of the body in the production and dissemination of the work is essential. In this situation, the choreographic work relies on the body of the performers to exist, take place and be shaped, in order to be perceptible. The performers are both supporting the work and shaping it. Yet, this feature did not prevent copyright from protecting choreographies. Should this be considered as a sign that copyright is inclined to protect human bodies or works including human bodies? Does the legal protection of choreographic works mean that the human body can be copyrighted?

The protection by copyright of choreographic works could actually be interpreted in two very different ways. On the one hand, it could be argued that copyright is aware of the involvement of the body in the situation of choreographies but does not judge it as problematic. This would lead us to believe that the human body is copyrightable and that other types of work could engage with the body without losing their eligibility to copyright protection. On the other hand, this could also mean that the law has disregarded or ignored the role of the body in the context of choreographic work. As a consequence, the question of the ‘copyrightability’ of the body remains a question mark and the protection of choreographic works would then been justified upon the long standing tradition of the art of dance and its cultural importance in our Society. This assumption would argue that the possibility to copyright choreographic works has more to do with legal conservatism than legal avant-guard. The lesson body or tattoo artists could take out of these observations is that they have to maintain their practice until obtaining a more solid artistic status among their Societies. When this time comes, copyright will have no other solution but to accommodate these practices as it did with choreographic works.
Even then, would our copyright laws be ready to copyright the body, fixation requirement and clashes with human rights let alone?

(e) Here, the originality requirement might prove to be a second obstacle. Indeed, the more the body is considered as shaping the object, the more the object will be shaped by the physicality of the body, as a result, the fewer creative input will be attributable to the author in the design of the work. The European Court of Justice has recently put the emphasis on the need for the work to be the product of the author’s own intellectual mind and not the consequence of mere technical constraints.

(5) In this situation, the body can be seen as posing biological constraints and, therefore, as rendering the work less ‘creative’, ‘original, or less of the artist’s “own intellectual mind”. For this reasons, the more the work relies on the body, the more its author risks losing his/her authorial rights over it. These remarks underline the fact that, even though a work of body art passes the human right and fixation tests, all difficulties are not cleared. Such difficulties will not be cleared until other the Courts or the legislators take position as it has been demonstrated how ambiguous the current position of the law is, regarding the copyrightability of the body.

(1) Merchandising v Harpbond (1983) FSR 32
(2) For a recent and high profile case see Verified Complaint for Injunctive and Other Relief at 1-2, Whitmill v. Warner Bros. Entm't Inc., No. 4:1 1-cv-752 (E.D. Mo. dismissed June 6, 2011) ; case also mentioned in Timothy C. Bradley, The Copyright Implications of Tattoos: Why Getting Inked Can Get You into Court, 29 ENT. & SPORTS L. 1, 27 (201 1). See for reference on the debate regarding the copyright of tattoos and the issues of human rights , Matthew Beasley, Who owns your skin: Intellectual Property Law and norms among tattoo artists, 85 S. Cal. L. Rev. 1137 2011-2012 ; Thomas F. Cotter and Angela M. Mirabole, Written on the Body: Intellectual Porperty Rights in Tattos, Makeup and other Body Art, 10 UCLA Ent. L. Rev. 97 2002-2003 ; David. M. Cummings, Creative Expression and the human canvas: An examination of tattoos as a copyrightable art form, 2013 U. Ill. L. Rev. 279 2013 ; Mereditch Hatic, Who owns your body art? The copyright and constitutional implications of tattoos, 23 Fordham Intell. Prop. Media & Ent. L.J. 396 ; Christie Lesicko, Tattoos as visual art: How the body fits into the visual artists rights act 53 IDEA 39, 2013; Christopher A. Harkins, Tattoos and copyright infringement: celebrities marketers, and businesses beware of the ink, 10 Lewis & Clark L. Rev. 313 2006.
(3) Section 3(2) of the Copyright, Designs and Patent Act 1988: “Copyright does not subsist in a literary, dramatic or musical work unless and until it is recorded, in writing or otherwise”.
(4) Choreographic works have entered the category of protectable works by copyright under the label od “dramatic work” see Section 3(1)(d) of the Copyright, Designs and Patent Act 1988.
(5) See for the CJEU’s judgements: Case C-5/08 Infopaq, Case c-393/09 BSA, joined cases C-403/09 and C-428/09 FALP, Case C-145/10 Painer, Case C-604/10 Football Dataco and Case C-406/10 SAS.
The categorisation of works or subject matter protectable by Copyright is detailed under Section 1(1) of the Copyright Designs and Patents Act 1988. Mr Justice Arnold held that: “In the light of a number of recent judgements [here above quoted], 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) of the Copyright Designs and Patents Act 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 Eleanor Rosati, “Pushing the Boundaries of Copyright Protection? Card, Board and Football Games”, IPKAT Blog, Sunday 28 April 2013, available at: http://ipkitten.blogspot.co.uk/2013/04/pushing-boundaries-of-copyright.html (last visited: 06/06/13).