I just read a very interesting article at https://www.jdsupra.com about IP rights of a Tattoo Artist and their work. A copyright is defined as “a person’s exclusive right to reproduce, publish, or sell his or her original work of authorship (as a literary, musical, dramatic, artistic, or architectural work)” that is fixed in a tangible form of expression.
So, can a tattoo be considered an original work fixed to a tangible form? To be an original work the tattoo must be independently created by a human with at least some minimal degree of creativity, and it must be “fixed” when it is captured in a permanent medium such that the tattoo can be “perceived, reproduced, or communicated for more than a short time.” A tattoo is usually designed by a tattoo artist or is designed under the direction of the individual receiving the tattoo requiring the tattoo artist to interpret the individual’s request requiring the artist to have a minimal degree of creativity. The second requirement is met by fixing the Tattoo Artist’s work to your body for life.
Since, tattoos meet both requirement and according to the law are copyrightable, how can an artist own a copyrightable image that is on someone else’s body? Currently there is no clear jurisprudence regarding this issue, and most cases settle out of court. Nimmer on Copyright discusses this issue by referring to Mike Tyson and the suit surrounding his facial tattoo which states, “[t]he tattoo qualifies as an original “work of visual art” that may gain “recognized stature,” with the result that a court may enjoin its destruction. See 17 U.S.C. § 106A(a)(3)(B). After a court invokes that provision to bar him from removing his tattoo, Mr. Tyson literally may not show his own face to the world; that is, he will be required to keep Mr. Whitmill’s handiwork spread across his face, regardless of his own desires. Copyright law thereby becomes the instrument to impose, almost literally, a badge of involuntary servitude, akin to the mark with which ranchers brand the cattle they own.” Nimmer
Currently there is a case in New York District Court in front of Judge Laura Taylor Swain involving LeBron James’ tattoos on a video game created by Take-Two the publisher of NBA 2K video game franchise. Take-Two argues that LeBron James’ tattoo is de minimis or fair use and therefore the case should be dismissed. However, Judge Swain denied their motion and further stated that “[t]he Court finds that, with respect to the video game at issue, it is not possible to apply the qualitatively-focused ‘average lay observer’ standard.” In addition, Judge Swain states, “[b]ecause of the difficulties inherent in conducting a side-by-side comparison of the video game and the Tattoos, further evidence must be considered in connection with the fact-intensive question of the applicability of the fair use defense. As the differences between the Tattoos and Defendants’ use in the video cannot be resolved with assurance on a visual comparison of the works alone, Defendants’ fair use of the Tattoos is not so clearly established on the face of the [SAC] as to support dismissal.”
From Judge Swain’s statements it sounds like she is even unclear on how to rule on this issue, and needs more evidence and fact-finding in order for her or the jury to make a proper decision regarding this controversial issue. So, it looks like we are waiting a little longer to finally get a ruling regarding tattoos and copyrights. However, in the meantime we can still argue the issues and attempt to see what would happen if tattoos are ruled copyrightable. Nimmer gives a great discussion on the weird and awkward outcomes that we might see if tattoos are ruled copyrightable:
1. An overlapping tattoo may be considered a derivative work would could infringe the original artist rights.
2. “Even when the tattooist assigns away by contract all right, title, and interest in the copyright, he can still return 35 years later to assert an inalienable right to terminate the grant.”
3. Celebrity and athlete tattoos on film, documentaries or magazines would need to obtain a license from the tattoo artist to show their work, and if no license is obtained the celebrity or athlete could be liable for contributory infringement.
4. You are now walking around with someone else’s copyrighted material on your body and have to get a license to show it publicly in a picture or movie.
We will eventually have a ruling regarding tattoos being copyrightable. However, in the meantime we can only postulate what the courts will rule, and apply current copyright law to those “copyrightable” images.