26 August, 2020

A Swirl of Personality - Can You Have Copyright in a Fingerprint in the US?

It's easy to forget how such a minor detail as a person's fingerprint can be an important part of their person. Even setting aside the old school method of identification of potential criminals, smearing their ink covered fingers onto a police log book, a fingerprint evokes a more romantic notion of individuality; a truly unique set of impressions that are yours and only yours. While there is some truth to this notion, it might not be entirely the case, but nonetheless it's a hard thought to let go of. Fingerprints have often also been used in art, undoubtedly playing to the above thinking, but as it has been used in creative works, could one own the copyright to a fingerprint? Luckily, the USP Copyright Office issued a decision answering this question earlier this month. 

The decision in Re Equilibrium concerned an application to register the copyright in a variety of works by the artist Manjit Dhaliwal. The works, including one titled "Equilibrium", comprised different partial fingerprints cropped into four geometric shapes, namely a square, hexagon, circle, and triangle. Mr Dhaliwal attempted to have the works registered as early as 2018, however, the Copyright Office rejected the applications for a lack of authorship in those works. Mr Dhaliwal then requested that the applications be reconsidered a total of two times, the latter of which is the decision in question. 

The matter concerned whether the works could be deemed as original works. This means that they have to be an "...original work of authorship fixed in any tangible medium of expression", meaning that they were (i) independently created by the author and (ii) possess sufficient creativity. This can include the mere arrangement of common or standard designs, but the author has to show some creative authorship in its delineation or form. 

Also, patterns can be protected by copyright (including a fingerprint pattern), so long as the use of the shapes in the patterns is sufficiently creative.  

After the discussion of the legal background, the Copyright Office then dove into the assessment of the works themselves. The Board quickly determined that none of the elements in the works, including the fingerprints, are sufficiently creative to be eligible for copyright protection. 

Specifically in relation to the fingerprints, the Copyright Office noted that copyright does not protect the design found on a human fingerprint, as copyright will only protect an original work of authorship created by a human being and not works produced by nature. Since a fingerprint is  a part of the human body formed by natural processes outside of human control, it cannot have human authorship, and thus isn't original. Even though the author had made alterations to the fingerprint by cropping and amending its lines, it still wasn't sufficiently original to be protected. 

The Copyright Office therefore rejected Mr Dhaliwal's application for registration of the copyright in the above works. 

The decision is quite a curious one, but makes sense, as protection in a fingerprint would extend its remit beyond human creation, but also into the realm of natural creation. Even though the artist had made alterations in the shape and lines of the prints, they remained largely as they were scanned, and very little originality was applied bar the shape and order of the scanned fingerprints. While unsurprising, it's always nice to see discussions of more novel things in the sphere of copyright within governing bodies. 

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