Inspired by recent litigation involving the copyrightability of Mike Tyson's Maori-inspired facial tattoo, some of America's law professors have contemplated a different-but-similar issue: whether American copyright law protects nose doctors' surgical masterpieces. The answer? Probably not, but it's not completely impossible.
On PrawfsBlawg—"the Internet playgrawnd for law profs"—Southwestern Law School associate prof David Fagundes presents a verrry inneresting analysis of nose copyrightability partly in response to University of Chicago law professor (and deputy dean) Lior Strahilevitz, who originally raised the issue. Fagundes begins his analysis with three questions:
- "First, is a nose job a work of authorship?
- Second, is a nose job fixed in a tangible medium of expression?
- And finally, is a nose job original?"
In responding to the first question, Fagundes applies section 102(a) of the 1976 Copyright Act, which—in case you don't have your copy in-hand at the moment—goes a little something like this:
(a) Copyright protection subsists, in accordance with this title [17 USCS Sects. 101 et seq.], in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works.
What's missing from that list of categories? Did you say "nose jobs"? Correct! But Fagundes interprets the language here to be inclusive, not exclusive—in other words, "the framers wanted the statute to remain flexible in terms of what counted as a work of authorship." He notes that "nose jobs" could arguably fall under "sculptural works," because they involve nose-sculpting. (In more than 99% of cases the altered noses are permanently affixed to the recipients' faces, which resolves Question #2.)
As for Question #3, Fagundes explores whether surgeons are "authors" of the nose jobs they perform, or "more like craftspeople" who do their jobs in no particularly creative fashion. (Side question: Have you ever seen a surgeon sell nose jobs on Etsy?) If the surgeons are just doing their jobs and cranking out plain-ol' noses, then it's unlikely that their work is original enough to deserve copyright protection, he says. America's official copyright statute states that for things to be copyrightable, they have to be "original works of authorship fixed in any tangible medium of expression." As Fagundes points out, most people want their noses to look like a nose they've already seen before, in real life:
Nose jobs, it seems to me, may well lack originality in the majority of cases. The point of most nose jobs is not to create a creative or distinctive look, but rather to make the patient's nose fit some preexisting (usually, smaller) archetype of what a nose should look like. This is the antithesis of originality; it's an attempt to make the patient's nose less, not more, distinctive and original.
But what if a person wants a very distinctive nose? For examples:
- a mosquito-like proboscis
- a hammerhead shark-like nose, with the nostrils on the ends
- a nose that folds over to one side, in honor of book pages/reading
- a ceramic tile nose with a floral or tribal design
- a nose with nostrils that flip up like the doors of a DeLorean, for better-cleaning purposes
Oh, now these kinds of noses would probably complicate things, Fagundes suggests—especially because the copyright owner would not be the nose owner but the surgeon, aka the "nose sculptor," or the "nose artiste." What if your doctor said you couldn't wear your nose out in public? Then you would have to get your nose removed, and that would be no fun.
So, how worried about nose job freedom should you be? Not very: Fagundes thinks "most" noses wouldn't receive any such copyright protection. Meanwhile, copyright scholar extraordinaire David Nimmer, who is an expert witness for Warner Brothers in the Tyson tattoo suit, says human bodies can't be protected by copyright law even if you change them a whole lot. And he's highly regarded as "the man" about copyright things, so there you go. But if that doesn't put your mind at rest, then you should probably not get that hammerhead shark nose (it's probably for the best anyhow—that thing would just get caught in doorways).