By all accounts, The Hangover: Part II flick appears to be a big financial hit, at least this weekend. Focusing on the facial tattoo that is prominently featured in the film, and further to my blog post of this past Thursday, I continue to be troubled by the prospect of copyright protection for a tattoo.
It is clear enough that Mike Tyson's facial tattoo is a work of graphic design and is included within the subject matter of copyright. It is also certain that the permanent tattoo is, well, permanent and fixed in a tangible medium. So, why should there be a question of copyrightability?
There are many items that adorn a human body that are not copyrightable for one reason or another. A hair stylist may be quite creative in designing a new coiffure, but the constant growth of hair -- and the resulting change in shape of the cut -- means that the hair design may not be sufficiently permanent and is, in any case, functional (hair must be cut periodically). The same can be said of a cosmetic artist who creates a highly stylized facial rainbow, and a cuticle stylist who adorns finger tips with creative designs. While this work of body adornment is high fashion, it is also functional (makeup and finger nail polish protect the skin and, secondarily, provide a bodily presentation that creates sexual attraction that leads eventually to procreation, etc.). Plus the need to wash the face and cut the cuticle means that the work is not sufficiently permanent. Add the aroma of pungent perfume to this mix of non-permanent, functional bodily accouterments.
The above examples pertain to work that is so intimately applied to the body that it becomes one with the body. They are not protectable in copyright either from lack of permanency or inherent functionality. Apparel is another item of bodily adornment. It is not copyrightable because of historical views of function that clothing provides to the body. Though apparel is of another class than the very intimate works of tattoo, cosmetics, nail paint and perfume that are applied directly to the body, the lack of copyrightability in the very things that humans wear to warm themselves, protect themselves and to become noticed supports the view that there are some things that simply are too closely associated with the body to merit copyright protection.
A tattoo seems to me to be so personal that, notwithstanding its permanency, it serves a very functional purpose of becoming the human body. Pulling skin into a tuck to hide its lack of elasticity, coloring hair to hide its natural lack of attractive color, reconfiguring a nose or acid washing the skin to correct perceived flaws, all may be creative but they are too personal to a human. The result of the work becomes the human. A tattoo is of this sort. Mike Tyson is now a tattoo-bearing human. His face has been altered by the ink just as his face would be altered by plastic surgery. Notwithstanding how creative the plastic surgery, the resulting transformation involves a surgical alteration of the body that, itself, becomes the body. And while the holder of the tattoo needle may be as skilled in his or her field as the plastic surgeon, the result is the same: an alteration of the human body that becomes the body. As the body, the result of the work is purely functional.
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