The other day, I caught a Hangover movie marathon, which got me thinking about copyrights. Remember the scene in Hangover 2 where Stu (played by Ed Helms) gets that famous Mike Tyson tattoo on his face?
If you’ve ever stepped into a tattoo parlor and have art permanently etched into your skin, this may be an interesting topic for you to consider: who owns the rights to the tattoo that has become a permanent part of your body?
Copyright law requires that an artistic expression be original and fixed in a tangible medium. If a copyright is an original work that has been fixed in a tangible medium, does that make a tattoo copyrightable subject matter? In 2011, Federal Court Judge Catherine D. Perry stated, “Of course tattoos can be copyrighted.” Is it really that simple?
There are numerous celebrity tattoo artists who have reached fame and fortune by creating tattoo art. Some tattoo artists (such as Ed Hardy and Kat Von D) have actually licensed the use of their tattoo designs to clothing companies or have developed their own lines of merchandise. So I’m sure that many of these people would agree that tattoos are art worthy of copyright protection.
But what does the Constitution say?
The US Constitution Art. I, §8, Cl 8 grants exclusive rights to artists for a limited time. Those exclusive rights include the following: 1) the right to reproduce a work, 2) the right to make derivative works, 3) the right to distribute the work to the public, 4) the right to perform the work in pubic, and 5) the right to display the work in public. If we allow tattoos to be copyrightable, the artist would be presumed to have these exclusive rights.
In the 2011 court battle between Mike Tyson’s tattoo artist, Victor Whitmill, and producers of the Hangover movies, Warner Bros. Entertainment, Whitmill claimed that Mike Tyson signed a release granting Whitmill authorship and ownership of the tattoo and that he registered a copyright for the design. Whitmill accused Warner Bros. of using the design without permission. This case settled out of court, suggesting that the court would have likely ruled in Whitmill’s favor.
So, who owns your body art?
There is a difference between authorship and ownership. The original author of a work may not be the one who has ownership of the work. There are three possible answers to the question of ownership. First, the author can retain the ownership rights to the art if they are the sole author. The author has those exclusive rights that I mentioned above.
Second, the tattoo could be considered a “Work for hire,” which means that the tattoo artist is being paid to produce the art, thus the person who commissions the work would retain ownership of the work. The person receiving the tattoo could make this argument, because the tattoo would have been prepared by the employee at the tattoo parlor and it would have been created within the scope of employment.
Last, the tattoo could be considered a joint work, such that the tattoo artist and the person getting the tattoo both retain joint ownership rights of the tattoo. With a joint work, there needs to be intent to merge contributions into a single work and there must be intent to share authorship. Unless the person wanting a tattoo has contributed to the design, it is unlikely that there would be a joint work argument.
Another case arose in 2012 when MMA fighter Carlos Condit’s tattoo was used in the games UFC Undisputed 2012 and Undisputed 3. Condit has a tattoo of a lion over his ribs and the fighter’s likeness was used in the video games along with a depiction of that tattoo. The tattoo’s artist, Chris Escobedo, sued video game publisher THQ. So then it becomes an issue of IP v. Privacy. If a person is able to become identified by their tattoo, then the copyrightable art merges with their personhood and than you may have a right to publicity.
But you don’t really have to worry about your tattoo artist suing you for copyright infringement. It’s the same concept as purchasing a painting. If an artist sells you a painting, you have property rights of ownership. But, if you make copies of your tattoo and sell it, you’re asking for the tattoo artist to come after you for copyright infringement. Also, be aware that some tattoo artists have you sign contracts when obtaining a tattoo. This may be an attempt to discourage distribution or replication of the tattoo.
Until the Supreme Court weighs in on this debate, we’re left with a few unanswered questions. Whose celebrity tattoo will be the next one to be involved in a copyright infringement case? In the future, we may see more and more tattoo artists asserting their artistic rights over the designs they permanently affix to a person’s body. Ultimately, we’re left with the question of who owns a tattoo design once it has been permanently affixed into a person’s skin? And really, we won’t know until it’s challenged and the Supreme Court can give us a more definitive answer.