#SunBurnArt As
Dumb Trend
This is a social media trend, and some of the sunburn “art”
is not much to look at, but some patterns created on the skin are certainly
original enough to be protected by copyright. Under U.S. law, sunburn art can
be protected by copyright if it is original enough and if it is fixed. While a tan
is ephemeral (although the sun damage is permanent), it is fixed by the
selfies, and may thus be protected by copyright. One can imagine a copyright
infringement suit filed by someone claiming that a “selfieccionado” has ripped
off his #sunburnart, although I hope never have to read this complaint, at
least, not before cocktail hour.
#SunBurnArt as
Performance Art
Because #sunburnart is potentially dangerous to one’s
health, and as some of the patterns are quite original, one could consider some
of these selfies as performance art on social media (oh yeah!).
Performance artists often put their health, even their lives,
in jeopardy when using their bodies to create a performance. In the 1971,
performance artist Chris Burden had a friend shoot him in the arm with a gun
for the performance Shoot. The same year, Gina Pane
climbed a ladder, which steps bore razor blades, to create L’Escalade. Three years later, Chris
Burden was nailed on a Volkswagen “bug” car, which was pushed out of a garage,
where the artist stayed for two minutes to create Trans-fixed. For Rhythm 0, created in 1974 in Italy, Marina Abramović placed 72
objects on a table, including a gun, a bullet, nails, a whip, a pocket knife
and, yes, a band aid and alcohol, which the audience could use as they wished on her body. Innocuous, even potentially
pleasant objects, such as perfume, water, or a coat, were also available to be
used. However, the artist ended up covered in blood.
These performances were all recorded, albeit not on selfies,
and thus are protected by copyright in the U.S., which protects works only if
fixed in a tangible medium. However, a performance artist wishing to be the
sole right holder should make sure that the person photographing or recording
the performance cannot claim the status of a co-author. Also, that fixation
must be done “by or under the authority of the author.”
This was reinforced recently by the 9th Circuit en banc in Garcia v. Google, where the court
noted that actress Cindy Garcia could not claim copyright in her performance,
because, among many other reasons, she had not fixed her performance herself
(see p. 16).
In France, the Paris
Court of Appeals held in 2004 that the photographer who had taken pictures
of the Première Tentative de rapport avec
un chef-d’œuvre performance created by Alberto Sorbelli, dressed as a
female prostitute, at the Louvre Museum in front of the Mona Lisa, was only the
co-author of the work, along with Mr. Sorbeli, who had filed a copyright
infringement suit after pictures of his performance had been published without
his authorization and using a different title. Interestingly, Mr. Sorbelli had
also claimed a violation of his right to his image, and this claim was also successful.
Performance Art and
Nudity, Oh Là Là!
Let’s stay in France, where performance
artist Milo Moiré was arrested this month in Paris for public exposure,
putting a stop to her performance piece wherein she asked delighted tourists to
take selfies with her, stark naked, in front of the Eiffel Tower. Indeed, even
though the French have generally a laissez-faire attitude about nudity, “sexual exhibition imposed on the sight of
others in a place accessible to the public” is incriminated by article
222-32 of the criminal Code and is punishable by one year imprisonment and
a 15,000 Euro fine. It isnot nudity per se which is incriminated, but sexual
exhibition, and the French courts consider what was the intention of the person
who exhibited herself to judge whether a particular public nudity is indeed a
sexual exhibition. The artnet news
article (see above) notes that “nudity is
normally tolerated [in France] if it is part of a performance. The arrest
indicates that France does not view her as a legitimate artist.” It is
probable that the police officers who arrested Ms. Moiré could not assess on
the spot whether her public nudity was or was not sexual exhibition, especially
because she encouraged contact with members of the public. Ms. Moiré was not
charged, but if she had to face trial, her lawyer would probably would be
successful in arguing that, because her public nudity was part of her artistic
performance, the facts lack the moral element of “exhibition” and thus cannot
be incriminated.
Let’s all have a fun and safe summer!
