Copyright and Body Art: Who Owns Your Tattoo?

Copyright and Body Art: Who Owns Your Tattoo?

It is strange to think that someone could have ownership over part of your skin, however, if you have a tattoo that is most likely the case. U.S. Copyright Law gives the create of an original work fixed in any tangible medium of expression ownership over it.1 This means that if a tattoo artist creates an original work of art for you, then they are the creator of the work and own the copyright. Even if you designed the work yourself, when the artists use their skills to ink the tattoo on your body they are contributing to the work thereby giving them some ownership in the mark. Nevertheless, it has never fully been settled whether a person’s body is a medium of expression suitable to meet the copyright requirement.

While for the normal population that gets a tattoo the odds of a tattoo artist coming after you for royalties is slim to none, however, for celebrities and professional athletes it is fairly common for an artist to seek compensation for their work, typically via copyright infringement suits.

In 2005, tattoo artist Matthew Reed sued Nike and Rasheed Wallace when Nike was planning to highlight a tattoo in a commercial he designed and inked on the NBA player without Reed’s permission.2 After designing the tattoo Reed registered the design with the U.S. Copyright Office. Unfortunately, we never got to see this case play out in court since it settled within a year of the complaint being filed.

The use of a professional athletes’ likeness has also given rise to copyright infringement suits over unlicensed tattoo use. With the increasing sophistication of video game technology over the years video game avatars have become more and more realistic mimicking details of the person they are designed after even down to the person’s body art. However, this has opened the playing field for copyright owners to sue, since arguably the company developing and/or selling the game is benefiting financially from the use of the tattoo design in its game.

Solid Oak Sketches sued Take-Two Interactive, a gaming company, over copyright infringement of several tattoos that Take-Two used it is NBA 2K video games.3 The tattoo artists who created the designs assigned their right to Solid Oak giving it the ability to sue for copyright infringement. This case holds great importance for the copyright world since the suit centers around whether tattoos are in fact copyrightable. While this case has yet to be litigated, earlier this year, U.S. District Court Judge refused to grant Take-Two’s motion to dismiss based on de minimis or fair use, because more fact-finding is in order to make that determination, meaning we may get a court ruling on the copyrightability of tattoos.

Another noteworthy copyright infringement suit, which also settled outside of court, but nevertheless is a fun one to read about it is Whitmill v. Warner Brothers Entertainment, Inc.4 This suit was filed by tattoo artist S. Victor Whitmill who created an inked Mike Tyson’s famous face tattoo. This dispute came about when Warner Brothers started advertising for Hangover Part II that depicted Mike Tyson’s tattoo on actor Ed Helms in arguably the exact same location. Whitmill sought an injunction just days before the movie’s release in an attempt to stop the film’s release to the public, but ultimately U.S. District Court Judge Catherin D. Perry denied the request. So, while the movie was making millions in the box office this case was going on behind the scene, however, it settled out of court as well.

 

ARC IP Law is well versed in all areas of copyright law including prosecution and litigation.

Hollie Kucera is an associate at ARC IP Law, PC and a graduate of Thomas Jefferson School of Law.

Danna Cotman is the founder of ARC IP Law and has a background in Fashion Design, a Master’s in Business Administration, and has successfully represented clients before the United States Patent and Trade Office (USPTO).

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