I got a tattoo this past summer.
As someone who hates needles and didn’t even have her ears pierced until her senior year of college, getting a tattoo was a big deal. But River City is chock full of phenomenal tattoo artists, and is repeatedly touted as one of the most tatted-up cities in the nation. So after months of consideration, I finally decided to memorialize a childhood nickname in a tiny, minimalist patch of ink.
So I did what anyone else would do: I turned to Pinterest.
Three search terms led to a flood of designs. Pages of artistry scrolled by as I searched for the perfect image. Photographs of gorgeous tattoo art provided a rabbit hole that ate up most of my afternoon.
My lawyer brain, however, started thinking. Who owns the intellectual property rights in tattoos?
Surely, most human canvases—myself included, when I have my non-lawyer hat on—would think that the copyright in any ink belongs to them. They did, after all, pay the tattoo artist to permanently engrave them with the design. However, while they may own the tattoo itself, the intellectual property rights attached may belong to the artist.
Stay with me here. Copyright law, as we have detailed before, grants owners six exclusive rights with regard to their copyrighted works: (1) to reproduce the work; (2) to prepare derivative works based on the work; (3) to distribute the work; (4) to perform the work publicly; (5) to display the work publicly (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission. Applicable to tattoos are reproduction, preparation of derivative works, and public display.
The original owner of the copyright is the one who fixes [the image] in its tangible form. One exception to this rule is a “work made for hire” in the employer/ employee context. Tattoo artists, however, are more like independent contractors, which would require an explicit copyright transfer agreement to transfer ownership from the artist to the tattooed. And no, this transfer is not included in most contracts signed at the tattoo parlor.
Copyright law clearly applies, as tattoos are the most permanent of fixed expression. But what rights does this actually give the tattoo artist? Can they prevent the client from photographing the tattoo? From uploading that photo to Pinterest? From displaying it in a public place? From being filmed in a movie?
One tattoo artist thinks the answer is yes. In 2011, Victor Whitmill sued Warner Bros. over the infamous Mike Tyson face tattoo in the movie “The Hangover II.” In the film, Ed Helms’s character wakes up with a copy of Tyson’s famous facial tattoo after a night of partying. In his complaint, Whitmill claimed Warner Bros. infringed his copyright by recreating and publicly displaying the Tyson tattoo. The case was settled for an undisclosed amount.
In another case, a tattoo artist sued Ricky Allen of the Miami Dolphins and Electronic Arts, (EA) a video game maker, over EA’s reproduction of Allen’s tattoo in their game “NFL Street.” The artist claimed that the reproduction of the bicep tattoo in the game infringed on his copyright. While the case was dismissed at the request of plaintiff, the NFL took note and began to advise players to get copyright transfer agreements from their tattoo artists.
Copyright law was never meant to give control over another human’s body. However, with little case law to use as guidance, tattoo artists and their clients don’t know what rights are afforded to them or how far those rights extend. With more and more people getting inked—one survey estimates one in three Americans under 40 have tattoos—this issue has miles to go before resolution. In the meantime, make sure to get a copyright transfer agreement from your tattoo artist—because you never know when you’ll need it.
If you’re interested in learning more, join us at our January Shark Bite as we take a look at the evolving law of copyright and, in particular, examine a number of fun infringement cases that have made their way to the news headlines in recent years.
Have an intellectual property law, business law, or other legal problem? Contact us to see how we might help.
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