Can poses attract copyright protection? PDF

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can poses like the "duck face" or the "Kardashian bottom sensation" attract copyright protection...

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Copyright is a safeguard under intellectual property law that protects expressive works such as dramatic, musical, artistic, and literary works for a defined time period1. This safeguard was established in order to prevent individuals from having their creative work taken advantage of by others. This area of law awards both an economic right as well as a moral right which means that it prevents people from profiting off your creations without crediting or compensating you and also prevents people from presenting your work to the public under the guise that they created it. Rights under this area of law arise without registration and they last for 70 years after the death of the creator. However, before creative work can attract copyright protection it has to satisfy certain criteria. The work in question must be original work, fixated, independent work (born from the author). In this essay, I will consider the criteria (focusing mainly on the originality criteria) necessary for an expressive work to attract copyright protection and determine to what extent Instagram poses satisfy them. For copyright to subsist in a piece of work it must be original2. The Originality criteria is an important factor in determining whether a person’s creative effort can be copyright protected. There is no actual definition for originality in copyright law, however, in the case of University London Press v University Tutorial, Peterson J stated that ‘original’ in this context does not mean that the work must be of inventive thought as copyright is concerned with the expression of thought not the originality of the ideas3. The criteria for originality are further explained in Ladbroke v William Hill. Here we are told that for a piece of work to be deemed original it must have originated from an author who expressed skill, effort, labour, and judgement4 and they must not have copied the idea from another person’s work. It is important to note that the originality criteria does not require novelty. This means the work does not need to be new or innovative, as long as the author can show that the work in question originated from their own mind and not from other individuals work then the criteria will be satisfied. it is also important to note that not all original works (or expressions) will merit copyright protection. This is illustrated in the case of Interlego AG v Tyco Industries Inc5. In this case, Lego produced a series of drawings that depicted their toy bricks which were registered as designs. Later these designs were modified, and they ended up being copied by another company (Tyco). Lego claimed that their copyright had been infringed and the court held that there was no infringement because even if the modifications were technically significant, they were not visually significant, thus meaning they did not attract copyright protection. Poses are ways of positioning one’s body to present a certain way when being captured either by recording, photograph, or painting. From we can see that poses come into existence based on creative choices made by either a model (the subject of capture) or the author. Thus, suggesting that if a pose is an intellectual invention of an author and was born out of their creative judgement, effort, and labour then it should be able to satisfy the originality criteria. This is illustrated in the case of Burrow-Giles Litho. v. Sarony6 . The plaintiff (Sarony) who was well known for the way he posed his subjects took a portrait of Oscar Wilde which was later knocked off by the defendant. Here the issue was that the plaintiff's work had been 1 Copyright, Designs and Patents Act 1988 (s1) 2 Redmans Commercial Team, ‘An overview of copyright subsistence’ (2012) https://www.redmans.co.uk/anoverview-of-copyright-subsistence/ accessed 1 March 2021 3 University London Press v University Tutorial 2 Ch 601 4 Ladbroke v William Hill [1964] 1 All ER 465 5 Interlego AG v Tyco Industries Inc. [1989] 1 AC 217 HL 6 Burrow-Giles Lithographic Company v. Sarony, 111 U.S. 53 (1884)

outrightly copied and the courts held that the way the plaintiff composed the images by arranging various accessories, costumes and drapery as well as posing Wilde in the way that he did to create an image with “graceful outlines” that “evoked his desired expression” was sufficient enough to provide original expression7. Similarly, in the case of Gross v. Seligman8 , the courts were faced with the issue of whether using the same pose in a photo is enough to render it a copy of the first. In this case, the photographer had sold the rights to an image then went on to recreate this work. To the layman, these pictures would seem identical but to an artist or a connoisseur of art, the differences between them are clear. The courts ruled that the poses in these pictures were similar enough to render the second a copy of the first even though other aspects of the image were different. These cases illustrate that the court may be willing to award copyright protection to poses if it is clear that these poses are direct and original expressions of the author's creative idea. Nevertheless, it is important to highlight that this may not always be the case. In contrast to these cases, we have Rentmeester v. Nike9 , where the claimant took an iconic photo of Michael Jourdan that was then copied by Nike (who made slight adjustments) which became even more popular and went on to be used as the inspiration for the 'Jumpman' logo. Here the courts held that although the original image was unique in the way Rentmeester set up the pose for the shot, the pose itself was not enough to attract copyright and the adjustments made were significant enough for it to not be deemed a copy of the claimant’s image. Another interesting case is Folkens v. Wyland Worldwide. Here the claimant created an illustration depicting two dolphins in a specific pose (one vertical and one horizontal crossing each other) underwater. Over 40 years later the defendant created an illustration of an underwater scene that had three dolphins (two of which were in a similar pose to that of the claimant’s illustration) along with other sea creatures and plants. Here the issue was whether the pose of the dolphins in the claimant’s illustration could attract protection. Judge Gould stated that artists do not have the right to copyright “ideas, first expressed in nature” and prevent other artists from using them10. He went on to state that artists may be able to obtain copyright if they have contributed an original expression to the “idea first expressed in nature” by changing the background, perspective or the coat/texture of an animal, however, the protection will still be narrow11. From this, we can see that whether a pose will be able to attract copyright is very dependent on the specific facts of the case. These cases suggest that a pose is more likely to be copyrightable if the author (artist) has an identifiable creative style that manifests in their creative expressions. However, we must also address that a lot of poses are naturally occurring thus making it unfair for one artist to prevent others from being able to express their ideas using it. When considering the Kardashian bottom pose, for example, it is fair to say that Kim Kardashian popularized the pose, but I highly doubt that she was the first person to pose like that, so awarding her copyright protection over it would be unfair. Although we have seen that it is possible for poses to attract copyright it is not very common. Due to this, we must consider what category of expressive work they fit into in order to see if it can be awarded greater protection. Copyright protects all types of expressive works and they are split up into four categories: dramatic, literary, musical, and artistic12. As mentioned 7 Michael Risch, 'Can You Copyright a Pose?' (Written Description 2018) < https://writtendescription.blogspot.com/2018/02/can-you-copyright-pose.html> accessed March 3, 2020 8 Gross v. Seligman 212 F 930 (1914) 9 Rentmeester v. Nike, Inc. - 883 F.3d 1111 (2018) 10 Folkens v. Wyland Worldwide, No. 16-15882 (2018) 11 Satava v. Lowry, 323 F. 3d 805 (2003) 12 Copyright, Designs and Patents Act 1988 (s1(a)

above, poses are ways of positioning the body when being captured either by recording, photograph, or painting13. Since we have identified how poses are captured, we can now deduce what kind of work they would be classed as. Due to their nature, they fail to satisfy the criteria to be a DLM, thus suggesting that they fall under artistic work. Section 4 (2) of the Copyright, Designs and Patents Act (CDPA)14 defines artistic works as graphic work (such as paintings, drawings, or plans), photographs, sculptures, collages, and other works of artistic craftsmanship. It is important to note that copyright protects all artist works irrespective of the quality of work however, with works if artistic craftsmanship there are requirements of originality and fixation that must be met before copyright can arise. Instagram poses are most likely to be classed as photographs because they satisfy the definition stated in section 4 (2) of the CDPA which states that photographs are recordings of light or other radiation on any medium on which an image is produced or from which an image by any means be produced and which is not part of a film.

Now that we have established the type of artistic work poses are and what we need for them to satisfy the originality criteria, we must consider the fixation. There is no explicit requirement for artistic works to be fixated as they are not recorded in the CPDA, however, Torremans suggests that these works should still be recorded in a permanent form. Waelde also states that copyright can only exist in work if it is “recorded either in a tangible or visible form”. Poses are only acted out for a short period of time when a subject is being captured thus implying that they need to be captured by photographers in order to provide a work that has a visible form and is tangible. Based on this it is fair to say that poses cannot satisfy the fixation requirement as they simply cannot be tangible on their own. Some argue that authors of poses may be awarded copyright via joint authorship. This is awarded to any work that is produced by the collaboration of two or more authors where each of their contributions is not distinct from that of the other authors15. There are three conditions necessary for Joint authorship to be awarded. First, collaboration that requires authors to collaborate towards a common work even if they do not have the intention to create a work of authorship16. Next, contribution which requires that each author significantly contributes in terms of creative ideas, skill, and judgement. Contributions of mere suggestions, ideas and information will not be enough17. The final condition is that it must not be distinct. This means that all authors are putting in effort to create a specific work and not a different type of work18. According to the decision in Temple Island v New English Tea19 , an original photo is copyrightable, and the copyright is awarded to the photographer. So, in order for the author of a pose to be awarded joint authorship, they must prove that they satisfy the criteria listed above. Considering that poses do not generally require a lot of forethought it would be rather unfair to equate that contribution to that of the photographer who not only has to come up with the vision but also construct the set and then capture the image in order to execute their creative idea. In conclusion, I believe that poses can satisfy the originality criteria. The requirements for this are that the work must not have been copied and that the author exercised skill, labour 13 “POSE | Meaning in the Cambridge English Dictionary” accessed February 27, 2021 14 Copyright, Designs and Patents Act 1988 S4 (2) 15 Copyright, Designs and Patents Act 1988 S10 (1) 16 Hodgens v Beckingham [2003] EWCA Civ 143 17 Ray (Robin) v Classic FM pls [1998] FSR 622 ChD 18 Hodgens v Beckingham [2003] EWCA Civ 143 19 Temple Island Collections Ltd v New English Teas Ltd and Another: PCC 12 Jan 2012 [2012] EWPCC 1

and judgment. We see in this in Burrow-Giles v. Sarony where the courts felt that Sarony’s style was unique and required much judgement and effort to execute hence why they deemed it copyrightable. However, this is not always the case as seen in cases such as Rentmeester v. Nike and Folkens v. Wyland. Although poses can attract copyright, this does not happen that often because poses occur naturally, and it would be unfair to give one artist the right to prevent others from also being able to express naturally occurring phenomenons. Also, because poses are expressed for a very limited time thus preventing them from being fixated without being captured by an author and that author is more likely to be awarded copyright since their work is tangible....