It is not only in our copyright, trademark, and intellectual property practice but also in our general business practice that we regularly have to deal with who actually owns (or will own) the copyright of a particular piece of graphic art, a photograph, a video, a design, a set of presentation slides, a piece of software code, and so on. Copyright protects a work of original authorship (including literary, dramatic, musical, artistic, and certain other intellectual works) once it is created in a “fixed form.” There is no doubt that a drawing, a piece of writing or sculpture, even a piece of computer code meets this definition… but a tattoo?
The Pugh Research Center reports that while 14% of Americans have at least one tattoo, among US adults aged 26-40, the figure is now 40%, and tattoos are now a $1.65 Billion dollar industry in the US. www.statisticbrain.com/tattoo-statistics/. And, while the courts have not yet definitively inked in the principle, if a work of art on paper is copyrightable, why not a work of art on skin?
The interesting wrinkle here, of course, is that unless your tattoo artist was your employee, or unless he or she signed a “work made for hire” agreement with you, the tattoo artist probably owns the copyright to the original design now permanently displayed on your chest. Arguably, in purchasing the tattoo, you have purchased a license to display it (although that is part of the bundle of rights normally reserved to the copyright holder), but this right may not be unlimited, and it may be that a company using the tattooed image of an athlete endorsing a product or captured in a video game and identified by his or her distinctive tattoos will find itself owing a royalty to the tattoo artist. Darren Heitner for Forbes writes here about San Francisco 49ers quarterback Colin Kaepernick sitting in a tattoo artist’s chair holding a tablet featuring the Yahoo! Fantasy Football app while getting inked up: Questions Concerning Copyright Of Athlete Tattoos Has Companies Scrambling – Forbes.
As you might expect, the lawsuits have already started: in Whitmill vs. Warner Brothers, the tattoo artist that inked Mike Tyson’s distinctive facial art sued W.B. for allegedly copying the Tyson tat and placing it on the face of an actor in The Hangover 2. You can read the complaint here. While that case may have settled out of court, penalties for copyright infringement can be high, so whether you are protecting that one-of-a-kind body-portrait or a more mundane work of authorship, you may wish to run it past your attorney before, rather than after, the ink is dry.