When a treatise writer tries to reconfigure copyright law to benefit a client.

Check out paragraphs 15 through 17 of David Nimmer’s declaration on behalf of Warner Brothers in the Mike Tyson tattoo case. Nimmer admits in paragraph 15 that he “used to” think tattoos were eligible for copyright protection and “even posited one line to that effect in a footnote” in his copyright treatise. But now he is representing Warner Brothers, he realizes he was wrong! He even said in a law review article that human bodies are not subject to copyright protection! See paragraph 16! Of course, whoops, that was not in the context of tattoos, but no matter. Having given the matter “intense consideration,” it turns out that copyright law is configured exactly as his client needs it to be, and see paragraph 25, that is what Congress intended all along!

Nimmer holds himself out as the nation’s authority on copyright law, and he’s provided a pretty clear road map here about how instrumental and client driven his legal analysis is. I’ve covered this territory before.oes

UPDATE: Rarely indeed does anybody theorize that I am “too polite”! From C.E Petit at Scrivener’s Error:

“Here is yet another example of why I do not use the Nimmer treatise on copyright. As Professor Bartow notes, the current Nimmer has (yet again) changed his “authoritative” opinion to match his clients’ immediate interests in a live dispute — and one should remember that neither the current Nimmer nor his father (who originated the treatise) represent actual creators, but only exploiters and middlemen. There’s nothing wrong with practitioners being involved in writing treatises; many treatises could definitely do with some input from the “real world” (I’m thinking, in particular, of the notoriously-disjointed-from-reality old chestnut Wigmore on Evidence). There’s quite a bit wrong, though, when the practitioner-slash-treatise-author-slash-authority changes his/her opinion not of what the law should be, but of what the law is, to match his/her own clients’ immediate preferences in a live dispute.

“Perhaps Professor Bartow herself is too polite to note it; perhaps she is a bit too removed from practice to have noticed it; but I found yet another ridiculous aspect of Professor Nimmer’s change of opinion: It’s in an improper document that the court should never have allowed to be filed. An expert opinion may only “assist the trier of fact to understand the evidence or to determine a fact in issue” (Fed. R. Evid 702, emphasis added). Arguments about the law are for the lawyers and to the judge only; if one wishes to bring in material from a “legal expert,” the proper method to do so is via citation to legal authority. There’s nothing wrong with that citation being to a yet-to-be-published work — so long as one provides copies to both the judge and the other side — but putting an interpretation of legal doctrine in as an “expert opinion” is flat wrong. Another big LA law firm tried this BS in the Ellison matter to no avail. You’d think they’d learn that if they’re going to tell the judge what the law is, they should do so in the context of telling the judge what the law is.”

UPDATE 2: But dog help us all, in some quarters this only makes the Nimmer Treatise more authoritative; see Gawker post by Lauri Apple:

“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.”

26 thoughts on “When a treatise writer tries to reconfigure copyright law to benefit a client.

  1. The messenger may be problematic, but the message is — in my view — largely right. (I’m not a fan of the “involuntary servitude” argument, for example.) Sometimes even the major motion picture studios have a point, and sometimes the artist doesn’t. The tattoo artist should lose this one.

    • I completely agree. Thanks to his retention by Warner Brothers, I assume Nimmer will now change his treatise, the “leading treatise on copyright law” according to the Supreme Court and most of the federal judiciary, and tattoos will no longer be copyrightable. Huzzah.

  2. On what grounds, Mike? Do you mean that if a tattoo artist copies a Disney cartoon onto someone’s skin as a tattoo, Disney shouldn’t be able to sue the tattoo artist or the customer? In other words, are you arguing that all aspects of the tattoo industry should be outside of copyright law, or rather that individual creations of tattoo artists made purely as tattoos (and not derived from someone else’s work) shouldn’t be protected?

  3. Hah, timing is everything. I agree with Mike that the tattoo artist should lose this one. I’d ground my analysis in copyright scope. My understanding is the Hangover tattoo is not identical to Tyson’s. It may be similar I wouldn’t give the artist much protection beyond exact copying. Jacqui also has a good point.

  4. Jacqui, there’s a long-ish thread emerging on IPProfs that I won’t summarize in detail, but my basic view is that human skin is not a “tangible medium of expression” for copyright purposes.

    So, if the tattoo artist puts Mickey Mouse on a client’s skin, Disney should have no remedy — against either the artist or the client. (It is difficult for me to come up with a plausible case on Disney’s side, except on a very strict formalist/doctrinal reading of the statute. What’s the injury to Disney, and what’s the remedy?)

  5. Usually a tattoo would be a personal, nonprofit type endeavor, and pretty clearly fair use I’d think. That’s why this case is so interesting.

  6. Nimmer is not the only treatise writer whose views have evolved as time goes by…

    Treatises, books, articles, briefs, memoranda, oral arguments, etc. are not the ten commandments. Authors reserve the right to change their minds.

    As do courts themselves.

    As long as we don’t treat the treatise too seriously in the first place, then change should be expected now and then…for whatever reasons.

    It seems to me that the real issue in this case at this point is not whether there is copyright in the tattoo. Let’s assume that there is.

    It seems quite obvious that the issue lies in the remedy.

    After eBay v. Merc Exchange and the recent Salinger v. Colting decision in the 2nd Circuit, it seems clear that neither temporary nor permanent injunctions should be taken for granted in copyright cases.

    Maybe this argument arose in this case. Does anyone have the briefs or the Court’s decision?

    Howard

  7. Thanks for the clarification, Mike. I wasn’t sure if you were arguing that human skin is not a tangible medium of expression (as you were), that tattoos are not sufficiently artistic to merit copyright protection, or that tattoos should be regarded as fair use (as Ann suggests) because there is no commercial damage/competition etc. So if your argument is that human skin is not a tangible medium of expression, would copying the tattoo artist’s original work onto something that WAS a tangible medium of expression be a copyright infringement in your view? (Of course, this question assumes that the original tattoo artist has created his/her design on paper [or some other tangible medium]before translating it on to the skin of his/her original client.)

  8. I’d answer “no” to that hypo, too. There’s a policy line and an administrability line between copyright law and human expression bound up physically with the human body.

  9. I don’t understand why this stuff is in a declaration. These are legal arguments; they aren’t assertions of fact. What Nimmer says is not evidence.

  10. “He even said in a law review article that human bodies are not subject to copyright protection!”

    That is fully consistent with what he said in his declaration in this case. He says that that is when he changed his view, in a law review article way before this case — what am I missing?

    I agree with your larger point about Nimmer changing views to fit a client; I’ve seen in it in other cases with Nimmer specifically when he was acting as advocate. But in this case, he seems to have changed his views way before this case.

  11. @Eric E. Johnson. That is exactly right — I think his client thought that a “declaration” from Nimmer would be more credible than a brief signed by Nimmer. But that is all the declaration was — a brief signed by Nimmer. That is what they should have done.

  12. CrazyTrain, what you are missing is that while he may have made some vague assertions about the human body in a 2001 law review article, in 2011 the Nimmer Treatise, which he himself touts as the ultimate authority on copyright law, still says tattoos are copyrightable. There is nothing wrong with changing one’s mind on an issue, but I find this level of blatant instrumentality kind of questionable ethically.

  13. More simply put, if he changed his mind about tattoos in 2001, one might reasonably expect that he would have changed the treatise to reflect same a decade ago as well

  14. Eric, I’m reminded of this line from Judge Haight in the S.D.N.Y., re: Arthur Miller: “To the extent that Professor Miller’s views express disagreement, explicit or implicit, with the Court’s opinions, on that issue or any other, I may perhaps be forgiven a personal sense of relief that my opinions were not research papers submitted to Professor Miller for grading. The more pertinent consideration . . . is that it is for the trial judge, and not an expert witness, however eminent, to declare the governing law in the case and instruct the jury upon it. My papers are graded by the Court of Appeals.” Kidder, Peabody & Co., Inc. v. IAG Int’l Acceptance Group, N.V., 14 F. Supp. 2d 391, 405 n.5 (S.D.N.Y. 1998)

  15. Mike, I am sympathetic to some of the policy concerns motivating your discomfort with the idea of enforceable copyright interests in tattoos. But I’m having a hard time following your argument.

    I don’t think there’s any serious question about whether or not at least some tattoos are original. And I can promise you, they are very much fixed.

    What you seem to be saying is, in order for a work to be protected by copyright, it needs to be conveyed in a “medium of expression.” And you are suggesting that requirement is distinct from both fixation and originality.

    Can you point to any statutory support or case law that articulates the “medium of expression” as a discrete requirement for protection, apart from fixation and originality? And can you provide any support for the notion that if such a requirement exists, it implies some sort of human body exception?

    There might be good reasons for the plaintiff to lose in this case – a lack of originality, implied license, fair use – but I don’t think Hangover II presents a big enough problem to formulate new doctrine.

  16. I certainly agree that the case is, on the whole, pretty trivial. I’m not pushing an agenda just to solve this problem. Rather, the tattoo example is an interesting opportunity to do some copyright calisthenics on a topic that many of us take for granted. We’ve gotten so used to the idea that almost anything can be copyrighted, because authorship, originality, and fixation can be found just about anywhere, that we’ve almost given up on the idea of substantive limits. I’m just pushing back, ever so slightly.

    Is there precedent for the proposition that I’ve offered? Not that I’m aware of, in the cases, but there is the statutory language itself. The phrases “medium of expression” and “tangible medium of expression” have to mean something; otherwise, Congress could simply have written “fixed” and left it at that. My (quick recent) re-read of the legislative history suggests that Congress believed that “tangible medium of expression” meant “tangible object” or “tangible thing.” “Object” and “thing” are pretty broad and malleable categories in themselves, but there is a thing-ness requirement that is implicit nonetheless. And thing-ness is not endlessly elastic. As David Nimmer suggested elsewhere (and I hope that he hasn’t changed his mind on this!), a brain is tangible , yet we don’t conclude that an original work of authorship is “fixed” if it is “fixed” only in the brain. [I believe that I made that point elsewhere yesterday, perhaps in comments to the Concurring Opinions post or perhaps on the IPProfs thread. It was very confusing keeping track of the same conversation in three places, with many of the same contributors!] One might say that a brain is a tangible medium of expression but the work isn’t fixed, or that the work is fixed but the brain is not a tangible medium of expression. Either way, the phrase contains two related but distinct requirements.

    We might look at these problems via originality, implied license, or fair use, but for a variety of reasons each of those solutions carries substantial problems of its own — primarily, in my view, that they load the dice considerably in favor of the plaintiff in a case (and class of cases) where there are some good reasons, against just in my view, to keep the material out of copyright altogether.

  17. When someone proposes a novel concept, like “a human body isn’t a legitimate medium for publication of copywritable material”, it’s often worthwhile to ask the question “what would happen if the world was like that? Particularly, are the grey areas?”

    A hardback book with paper pages is a quintessentially legitimate medium.

    A book with pages of vellum (mammal skin) is equally legitimate (British Acts of Parliament are still written upon these, and are released without quibble under Crown Copyright).

    The means of production of the book is not relevant, so they could have been tattooed upon the calf from whom the vellum came, or indeed a human, and that would be legitimate.

    So really, the only question is whether the copyright is vested in the work at the moment of creation (tattooing) or at the moment of publication (skinning the guy and plonking their skin into a book).

    In the US at least, the law seems very clear: it’s the moment of creation, and publication is not even needed.

    But IANAL, so I’m sure I’ve made some critical mis-leap of logic here without noticing.

  18. It’s not the act of tattooing that interests or concerns me. Hypothetically, if one were to harvest human skin and treat it and prepare it in sheets, then one could “tattoo” that skin with text and release it as a “book” and neither I nor anyone else, I hope, would challenge the copyright in the book.

    Things change, in my view, when one tattoos a living, breathing human being, who is part and parcel of the relevant skin. (One could ask whether “body art” on living, breathing mammals could be copyrighted. I suppose that it could be, and probably is, though copyright interests likely would be dwarfed in practice by trademark interests. I am thinking of things like brands on cattle.)

  19. The brain example strikes me as distinguishable. A work embodied only in my brain is necessarily private. As such, it can’t serve the evidentiary function fixation is meant to address. Nor can it serve fixation’s other purpose, preservation of the work to enable distribution and use for the benefit of society.

    A work embodied on my arm, on the other hand, creates a a stable piece of evidence of the protected work. And it creates a copy that can be seen, and perhaps enjoyed, by others for a long time to come.

    I’m not trying to say “there’s nothing to see here” when it comes to protection for tattoos. There are lots of interesting issues. But I don’t think protectability is where we should be focused. As the court’s reluctance to issue an injunction suggests, lots of the work here can be done by limiting available remedies.

    I’m also skeptical of the idea that the rights at stake in this or other tattoo related cases are all that different than in your run of the mill copyright case. Yes, theoretically a defendant in such a case could be enjoined from showing their own body in public. That strikes me as highly unlikely, but conceivable.

    But every copyright case implicates some loss of fundamental freedom on the part of the defendant. It’s just normally freedom of speech that’s at risk.

  20. What’s interesting in this dialogue (and I’m combining themes from this thread, the CoOp thread, and the IPProfs/CyberProf thread) is how levels shift up and down.

    There’s a pure doctrinal argument: Is a tattoo “fixed in a tangible medium of expression” when it is inked on a person’s skin? If “a person’s skin” is considered to be a “tangible medium of expression,” and in a purely formal sense it obviously is, then the fixation requirement is satisfied. Assuming the presence of authorship in the tattoo artist and originality in the work, then there’s no question: the tattoo is a copyrightable work of authorship.

    Then there’s a doctrinal argument colored by relatively narrow public policy, defined by statutory purpose: the “fixation” requirement should be interpreted so that a work is “fixed” if it provides a kind of public-ness that is important both for enforcement purposes and for “Progress” purposes. That’s the level where the “brain” hypo might or might not be distinguishable. (A work in my brain is quite accessible for use by society; society just has to work through me. The work doesn’t have the same “autonomous” existence that a book or a song appears to. And I am great testimonial evidence of the work’s existence. The work, however, doesn’t speak for itself. That is not a new problem, however, and it is a problem of degree, in my view, not a problem in kind.)

    There is another level of doctrine-colored-by-policy, in this case broader, non-copyright specific policy: “fixed in a tangible medium of expression” should be interpreted in a way that rights under copyright do not interfere (unduly) with various non-copyright freedoms. “Freedom of speech” is one such interest, and the conventional copyright-related macro-interest (your comment notes that), but it’s not the only one. I’m thinking not just in US Constitutional terms but in broader “right of self-determination, “right of personal autonomy” terms, to which freedom of speech relates but which are not co-extensive with freedom of speech. At this level, the argument is something like “my brain is me; my skin is me; I have the right to ‘author’ myself and my life; if anyone is the ‘author’ of my body — and there may be no such person — then that is me, not a tattoo artist or plastic surgeon, etc. etc.” My organs are not “media of expression”; they are “me.”

    There is still another level that disengages that last argument from the specifics of the language of the statute and just says, categorically, that certain kinds of “ownership” of parts of the body are fundamentally inconsistent with the rights and obligations of personhood and citizenship. That’s the kind of analysis that we saw in Moore and in some of the surrogacy cases.

    There’s more to say, and very smart people have written law review articles about all of this stuff. I do like to focus on protectability, though, precisely because it is a step that gets skipped over quickly and easily all too often. In this instance, there is a natural and understandable tendency to argue that tattoo artists are artists, what they produce is art and indisdinguishable conceptually from any other kind of art, and therefore they should have the same panoply of rights in copyright as novelists and songwriters. It’s the argument that we’ve heard from fashion designers, and quilters, and on and on and on. For those folks, too, it is possible to say: yes, you can have copyright protection, and society will limit broader costs by modulating remedies. In practice, however, and on the whole, that doesn’t happen — much. No preliminary injunction issued in this case, but the judge found a likelihood of success on the merits, and one wonders how much of the outcome turned on the fact that the movie was an early summer blockbuster that was, literally, on the eve of release. What if the hearing had been held in time for the film to be revised in post-production?

  21. Mike, I agree. There are a couple of different conversations happening here. And I just want to disentangle them a bit.

    If we’re making arguments against protection for certain sorts of works that are based mostly on policy and disengaged from statutory text and case law, I see the value in that. (I think we disagree on the right policy outcome, in part because of different assessments of the likelihood of admittedly troubling consequences coming to pass.)

    But it’s useful to clearly distinguish between what we might want the law to be, and what, based on all available indications, a plausible interpretation of the law is.

    I see no doctrinal basis for the conclusion that tattoos are not as entitled to copyright protection as any other original fixed expression. That’s the difference between the argument favoring tattoo artists and the arguments made by fashion designers.

    I don’t want to the be the wet blanket on a conversation about policy. I just want to clarify at which of these levels the arguments sit.

  22. Agreed on pretty much all counts, Aaron. I do think that much of the rhetoric in support of protection for tattoo art is very similar to the rhetoric in support of protection (of one sort or another) for fashion designs. (I’m using “rhetoric” there in a non-judgmental way.) The distinction, as you say, is that there is a solid case under current doctrine for protection for tattoos and no good case under current doctrine for fashion designs.

  23. An interesting analogy from across the pond, rejecting the contention that stripes on pop singer Adam Ant’s (a.k.a. Stuart Goddard’s) face could be a “painting” subject to copyright (Merchandising Corp. of America v. Harpbond [1983] FSR 32, 46 (C.A.):

    ‘“Painting” is a word in the ordinary usage of the English language and it is a question of fact in any particular case whether that which is under discussion is or is not a painting. It seemed to me … that it was fantastic to suggest that make-up on anyone’s face could possibly be a painting. … [A] painting must be on a surface of some kind. The surface upon which the startling make-up was put was Mr. Goddard’s face and, if there were a painting, it must be the marks plus Mr. Goddard’s face. If the marks are taken off the face there cannot be a painting. A painting is not an idea: it is an object; and paint without a surface is not a painting. Make-up, as such, however idiosyncratic it may be as an idea, cannot possibly be a painting for the purposes of the Copyright Act 1956.’

    What will those strange Brits think of next?

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