Screen grab from AEO website showing AHOL mural
Miami's most famous street artist AHOL Sniffs Glue (government name David Anasagasti) was in the news quite a bit over the past year or so due to his copyright infringement lawsuit against American Eagle Outfitters. AHOL sued because AEO used one of his iconic "drowsy eye" murals as the centerpiece of its worldwide marketing campaign (as seen in the image above), without ever consulting with the artist (let alone compensating him).
But that case settled in December 2014, old news. What is going on with AHOL today? Recent oral surgery from the looks of it:
Screen grab from e-store at aholsniffsglue.com
Yes, judging from the above it appears that AHOL is selling his wisdom teeth in his online store. All four of them, for $13,000, to be exact. (We'll go ahead and assume that the differing size options are a function of AHOL's e-commerce platform, and not that his wisdom teeth are actually available in Small, Medium, Large, and Extra Large.)
Now, art made from body parts is not unprecedented - see here and here. What's notable in this case, however, is that AHOL has not incorporated the teeth into any kind of work of art. Rather, he is just selling the unadulterated extracted teeth, still in their hermetically sealed little doctor's bag. It's an interesting poke by AHOL at the perennial "what is art" question, in the vein of Marcel DuChamp's 1917 "Fountain" sculpture (which was, in point of fact, a manufactured porcelain urinal).
If indeed AHOL's wisdom teeth make the cut and get categorized in the annals of art as "art," would they be protected by copyright? Let's say AHOL finds a purchaser for his wisdom teeth. Imagine that person decides to make mass reproductions of the teeth and sell them. Could AHOL stop them under a copyright infringement theory? It's not clear that body parts, otherwise unmanipulated, would be eligible for copyright protection as a sculptural work. To stop the unauthorized reproductions, AHOL would have to argue that growing teeth fulfills copyright's creativity and originality requirement. And if that's the argument, would AHOL even be the author of his own teeth? It seems to me AHOL's teeth could just as well be described as a joint work, authored by his biological parents. After all, it's their DNA that directed the cell division that resulted in AHOL's teeth. It's an interesting hypothetical - and not as far-fetched as it might sound. We've already seen someone try to assert copyrights in a chicken sandwich. Body parts may well be next.
Mikhael Bortz is an intellectual property, media and business attorney based out of Chicago and Miami. Mikhael specializes her legal practice in worldwide intellectual property, fine art issues, licensing, merchandising, branded entertainment, technology, and social media.