A Macabre Fixation: Is Plastination Copyrightable?

Kirill G. Ershov, University of California - Los Angeles

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 their indefinite preservation and ease of handling. 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. In 2006, von Hagens filed a federal suit against a competing exhibition, claiming that it had infringed on his original expression in the dissection and positioning of his exhibits. The suit was eventually settled out of court. This paper examines if there is original expression in the type of plastinated exhibits presented by von Hagens. Whether or not there is protected expression in the appearance of the plastinated tissues –i.e., the way in which the bodies are dissected and the positioning of the bodies –is explored in detail. Doctrines of merger and scenes-a-faire play a recurring role in the analysis, as both the medium and the subject matter restrict the scope of protected original expression in these exhibits. The paper concludes that these doctrines make a copyright infringement claim harder to sustain, but ultimately do not rule out a successful suit of copyright infringement. Alternatively, some expression is found to be de minimis and unprotected even against direct copying. Fair use is not considered.