A Macabre Fixation: Is Plastination Copyrightable?

36 Pages Posted: 4 Jan 2015 Last revised: 4 Sep 2017

Date Written: January 2, 2015

Abstract

Dr. Gunther von Hagens invented plastination as a process to preserve anatomical specimens. Plastination replaces water and fats in anatomical tissues with plastic polymers, allowing for indefinite preservation, ease of handling, and storage of the plastinated “objects.” Beginning in the 1990s, von Hagens developed Body Worlds, a lucrative traveling exhibition composed mostly of plastinated cadavers in various degrees of dissection and often-provocative poses. Immensely successful and controversial, Body Worlds has been continuously touring the world in multiple installments. Various competing shows have sprung up, with von Hagens’s biggest competitor, Premier Inc., also becoming a successful player in the worldwide plastinated cadaver market.

In 2005, von Hagens filed a federal lawsuit against Premier. Von Hagens claimed that his cadavers are unique in their manner of dissection and positioning and are entitled to copyright protection as original expressions of ideas fixed in tangible media, and that Premier infringed on those expressions with its own Bodies Revealed exhibition. The suit was eventually settled out of court.

This paper examines whether there is original expression in the type of plastinated exhibits presented by von Hagens, exploring in detail whether there is protected expression in the manner of dissection and the positioning of plastinated bodies. Von Hagens’s work is put to an originality analysis in the first section of the paper. Von Hagens’s exhibits, as well as those of his competitors, are examined to see if a copyright infringement claim can be sustained against appropriation in competing exhibits. Doctrines of merger and scenes a faire play a recurring role in this analysis, as both the medium and the subject matter restrict the scope of protected original expression in these exhibits. These doctrines require a stricter, thin copyright standard of comparison to determine substantial similarity as applied to most of the aspects of plastinated exhibits. This paper concludes that an appropriately stricter, thin copyright standard makes a copyright infringement claim more difficult, but does not rule it out.

A plastinated cadaver falls under the protection of the Copyright Act as a three dimensional work composed of plastic that can be considered to be created for scientific or educational use. The originality requirement dictated by the Supreme Court in Feist Publications, Inc. v. Rural Telephone Service Co. is minimal — only a “modicum of creativity” is required for a work to be protected by a copyright — however, not all aspects of a work may be considered when determining originality, ideas, methods, facts, and scenes a faire are not protected.

Note: A version of this paper was published in 2009 in the University of Hawaii Law Review (32 U. Haw. L. Rev. 125) and in 2010 in the New York State Bar Entertainment, Arts and Sports Law Journal Vol. 21, No. 2.

Keywords: Gunther von Hagens, copyright, original expression, merger, scenes a fair, substantial similarity, plastination, plastinated cadaver, Body Worlds, Premier Incorporated, Bodies Revealed, Feist Publications, Inc. v. Rural Telephone Service Co., Intellectual Property

JEL Classification: K1, K19, K2, K29, K3, K39, K4, K49

Suggested Citation

Ershov, Kirill, A Macabre Fixation: Is Plastination Copyrightable? (January 2, 2015). University of Hawaii Law Review, Vol. 32, No. Winter, 2009. Available at SSRN: https://ssrn.com/abstract=2544744 or http://dx.doi.org/10.2139/ssrn.2544744

Kirill Ershov (Contact Author)

State Bar of California ( email )

CA
United States
888-800-3400 (Phone)

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