HomepageCommercial LawPrivate LawPublic Law & Human RightsCriminal LawEU & International LawCareers

Accessibility

Have Irlen Syndrome, or need different contrast? Click the button below for options.

Background Colours

Subscribe

Enter you email address below to subscribe to free customisable article notifications.

Alternatively, click the button below for our various RSS Feeds (available journal wide, or per section).

The Big Butt in Kim Kardashian’s Claim

About The Author

Oliver Palmer (Guest Contributor)

Oliver is currently studying his LPC at the University of Law, Moorgate, prior to starting his Training Contract at a Magic Circle law firm in September 2015. Oliver studied at Selwyn College, University of Cambridge, achieving a high 2:1. His particular interests lie within corporate law, dispute resolution, intellectual property, labour (employment) law, and real estate law. Oliver has previously worked within the telecommunications and property development fields.

At the back end of last year, Kim Kardashian showed a lot of cheek.

It was documented in Closer Magazine that the TV personality and socialite was so outraged when instagrammer, Jen Selter, posted similarly posed pictures of her bottom that Ms. Kardashian contacted her lawyers. This outrage has stemmed from the many selfie images that both celebrities post on the internet.

The reason for this alleged lawsuit of course being that Kim believed that this would breach the copyright she holds over her bum. Whether this report is true or not, it poses an interesting question:  could ones backside ever be a copyright-protectable subject matter when posed in a particular picture? This article focuses on the hypothetical case of Kim Kardashian litigating such a claim under English Law.

Kan-ye hold copyright over your bum in England & Wales?

The first stage of any inquiry into a copyright infringement claim is to establish subsistence of copyright is the owner of this particular subject matter entitled to copyright protection? As stated in the introduction, what we have in Kims case is a photograph that contains both (a) a body part; and (b) the body part in a particular pose. In general an author holds copyright over a photograph by virtue of it being an artistic workunder English law under section 4(1)(a) of the Copyright, Designs and Patents Act 1988. Likewise, it falls within the important European Infopaq International A/S v Danske Dagblades Forening [2009] decision. This case effectively harmonised European copyright law by stating that any given particular subject matter can be copyright-protectable if it expresses the authors own intellectual creation.

Due to the tensions between UK and European law, whether a body part, a persons buttocks in this case, can be copyright-protectable cannot be determined in such a clear-cut manner. A major issue is how it came into being; it is a question of whether and, if so, how a persons bum has been enhanced. This calls for an examination of various scenarios of how Kims bum has been photographed:

  1. the body part has been photographed without enhancement;
  2. the body part has undergone surgical transformation; or
  3. the body part has been modified through use of computer software (i.e. it has been photoshopped).

Without enhancement

The first point can be dealt with swiftly. A body part that has not been enhanced cannot be copyright-protectable because there is no intellectual creation by anyone. On the basis that Kim Kardashian has persistently denied having any kind of plastic surgery on this particular area of her body, she would have to admit she has before making any kind of copyright claim on these grounds.

Surgical transformation

Even if Kim or another party has undergone a surgical procedure to modify her bottom, it is submitted that the second point still would not vest copyright in anyone. One method of buttock augmentation is implantation. If using traditional English categorisation methods to determine the subsistence of copyright, one would try to class the new buttocks as an artistic work. Further categorisation could compare the new buttocks to a sculpture, but there are insurmountable difficulties that arise from this. The Lucasfilm v Ainsworth [2011] case concerned the production of Star Wars Stormtrooper helmets by a model-maker who allegedly infringed the copyright of the claimant over the sculptures. The Supreme Court held that the helmets could not be considered to be sculptures. The reason being that:

It would not accord with the normal use of language to apply the term “sculpture” to a 20th century military helmet used in the making of a film, whether it was the real thing or a replica made in different material, however great its contribution to the artistic effect of the finished film…it was the Star Wars film that was the work of art that Mr Lucas and his companies created. The helmet was utilitarian in the sense that it was an element in the process of production of the film.

On this reasoning, it appears that something that is part of an artistic work cannot necessarily be an artistic work in itself. Even if Ms. Kardashian were an individual artistic work (which is impossible under current copyright law) it would mean that the buttocks augmentation in itself could not be classed as an artistic work. Hence, as there is no artistic work, an enhancement pertaining to the individual cannot be copyright-protectable.

Rosati has highlighted in a recent IPKat blog entry on this very topic that the Infopaq decision has caused the closed subject-matter lists within section 1(1) of the 1988 Act to be incompatible with EU law. The UK’s closed subject-matter list provides that copyright only subsists in: (a) original literary, dramatic, musical or artistic works; (b) sound recordings, films or broadcasts; and (c) the typographical arrangement of published editions. Hence, the Infopaq decision promotes a wider range of subject-matters than English legislation currently provides for. There is a very grey area that now exists within copyright law as to what can constitute an author’s own intellectual creation, but based on existing English law and policy, boundaries can and should be delimited. The Supreme Court in Lucasfilm stated that:

It is possible to recognise an emerging legislative purpose (though the process has been slow and laborious) of protecting three-dimensional objects in a graduated way, quite unlike the protection afforded by the indiscriminate protection of literary copyright. Different periods of protection are accorded to different classes of work.

As there is judicial unease with extension after extension of artistic works, I find it difficult to believe that an English court would extend an author’s own intellectual creation this far either, particularly when the objects belong to another entity. If it were to do so, the copyright in an implant would be owned by the surgeon as the original ‘author’ under s11(1) of the 1988 Act, so Ms. Kardashian would have to be assigned the right before making a claim.

Computer Software Modification

The third point should also fall short of being copyright-protectable. We should see the photoshopping of an enhanced body part in line with the existing law on the copyright protection of paintings. In Merchandising Corp of America Inc v Harpbond [1983], photos of Adam Ant with a new style of facial make-up were not deemed to be copyright-protectable when the defendants reproduced them. Lawton LJ held that: ‘A painting is not an idea: it is an object; and paint without a surface is not a painting.’ Using this reasoning in a direct sense, it is difficult to see how a photoshopped enhancement of a body part can be an artistic work; the human body cannot constitute a surface for the purposes of copyright law. Hence, although a photoshopped image could be copyright-protectable, a photoshopped body part cannot, as it is a mere idea.

Again the issue of Infopaq arises, namely whether this can be classed as the ‘author’s own intellectual creation’. However, it is argued that this can be overcome by the distinction between an idea and an expression; the latter being only those things that can be copyright-protectable. Hence, traditional precepts of copyright law would mean that a photoshopped body part would fall outside of Infopaq.

Therefore, Kim could not gain copyright protection in any of the three circumstances regarding her bum.

Has Kims posing posed a problem?

Having established that it is highly unlikely that copyright can subsist in a body part such as Kim Kardashians bottom, it is time to consider whether a persons pose could ever be copyright-protectable (in the hypothetical case that the body parts were deemed by a court to be copyright-protectable). A pose in itself cannot be copyright-protectable because it falls outside the closed list system. However, there is a very strong judgment that supports the idea that a pose in a photograph can be copyright-protectable in the Painer v Standard Verlags GmbH [2011] decision, which states that:

As regards a portrait photograph, the 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 background, the subjects pose and the lighting. When taking a portrait photograph, he can choose the framing, the angle of view and the atmosphere created. Finally, when selecting the snapshot, the photographer may choose from a variety of developing techniques the one he wishes to adopt or, where appropriate, use computer software. By making those various choices, the author of a portrait photograph can stamp the work created with his personal touch.

What I find troubling with respect to Kim Kardashians selfies is that there has to be a massive distinction between portrait photographs produced by a professional freelance photographer and someone taking a picture with their mobile phone in a department store changing room. How can the latter realistically align with the description in Painer of free and creative choicesthat, ultimately, contribute to the originality of a photograph and the underlying reasons for its protection by copyright law? The variables of this kind of image are much more controlled than when someone who is more than an amateur takes an image of a pose. One could almost argue that Painer delimits the Infopaq decision to protecting works where the photographer at least has some kind of conscious ability in the production of the photograph. In any case, this limitation would cause swimwear models, for example, and their photographers who are recreating an originalpose with each snap potentially to infringe another photograph. From a policy perspective, it is non-sensical that these poses are copyright-protectable. Hence, Kim Kardashians pose falls outside of the Painer decision, and is not protected by copyright law against similarly posed amateur photographs.

Conclusion

It has been argued that Kim could be making an ass of herself when it comes to calling in her lawyers over Jen Selters recent posts. Under English law, the body part and pose should not be considered to be copyright-protectable material.

The mould for copyright law has not been broken; the law has kept up with Kim Kardashian. We await her next attempt at claiming IP rights over her persona. Rumour has it the next move may be to register the trade mark North West, which would be to the displeasure of all compass manufacturers.

For the latest articles straight to your inbox, you can subscribe for free. Alternatively, follow @KeepCalmTalkLaw on Twitter or Like us on Facebook.

Tagged: Commercial Law, Intellectual Property

Comment / Show Comments (0)

You May Also Be Interested In...

The Death of Copyright Law's Idea/Expression Dichotomy

2nd Feb 2018 by Ted Cook (Guest Author)

Having a Laugh? The Parody Exception to Copyright Infringement

17th May 2016 by Liam Reynolds

Opening Pandora’s Box: Uncertainty in European Trade Mark Law

14th Apr 2016 by Liam Reynolds

Anne Frank’s Diary: The End for Kitty’s Copyright?

15th Dec 2015 by Samuel Cuthbert

Unified Patent Court - A Real Proposition?

6th Oct 2014 by Maxi Kussatz

Is it Possible to Trademark a Colour?

11th Jul 2014 by Maxi Kussatz

Section Pick May

Coronavirus and Contracts: Is Frustration in Play?

Editors' Pick Image

View More

KCTL News

Keep Calm Talk Law: Moving Forward

3rd Sep 2019

Changing of the Guard: Moving Keep Calm Talk Law Forward

12th Aug 2018

An Anniversary or Two: Four Years of Keep Calm Talk Law

11th Nov 2017

Rising from the Ashes: The Return of Keep Calm Talk Law

18th Nov 2016

Two Years On, Keep Calm Talk Law’s Legacy is Expanding

11th Nov 2015

Twitter

Javascript must be enabled for the Twitter plugin to function. Click below to visit us on Twitter.

Free Email Subscription

Subscribe to Keep Calm Talk Law for email updates, and/or weekly roundups. You can tailor your subscription on activation. Both fields are required.

Your occupation / Career stage is used to tailor your subscription and for readership monitoring.

Uncheck this box if you do not want to receive our monthly newsletter.

By clicking the Subscribe button, you agree to our privacy policy and terms of service. Please ensure you read these in full.

Free Subscription