Summarize

The article discusses who is the copyright holder of the tattoo and what are the rights of the artist, tattoo bearer and the third parties (photographers, game creators, marketing specialists, etc.) in using the copyrighted image.

Maria Boicova-Wynants

European Trademark Attorney, Partner at Starks IP and International Trade law firm (www.starks.be), Mediator

Ink and copyright. Tattoos as an object of copyright protection

At a first glance, it might look straightforward: tattoo artists are artists and artists should have copyright in their art. At the same time, a person can do whatever s/he wants with one’s body^[1].

So who owns what and where are the limits to these rights?

To begin with, copyright is perhaps the most nuanced of all intellectual property rights. The reader probably hates when a lawyer replies with a “classic”: “It depends” answer. But, sorry, in copyright, it really depends. It is hence my main intention for this article to give an idea of the issues that might arise and highlight what should/can/might be discussed and agreed upon in the context of tattoos to avoid trouble later on.

To whom might this be relevant?

For tattoo artists, but also for anyone with a tattoo, for a photographer who takes photos of people with tattoos, a game creator, an actor, a marketing professional, an artist, whose drawings would look nice as tattoos, an illustrator,… and this list goes on. There can be, in fact, many stakeholders involved and there can be many situations and angles to look at tattoos and associated rights.

Though, let us tackle it step-by-step (or should I better say: punch-by-punch).

Tattoos come in different shapes

A tattoo is defined by the Oxford dictionary as “a picture or design that is marked permanently on a person's skin by making small holes in the skin with a needle and filling them with colored ink”. So essentially it is a form of artwork made in a specific way and on a very specific medium.

According to Wikipedia, tattooing has been practiced across the globe since at least Neolithic times, while the oldest (discovered so far) tattooed human skin belongs to Ötzi the Iceman who lived sometime between 3370 and 3100 BC.

Ötzi might have been the first, but nowadays he has many followers, as WorldAtlas, for instance, claims that 48% of Italians, 47% of Swedes and 46% of Americans have at least one tattoo. Despite the health risks and pain, this type of art (or self-expression) attracts a lot of people.

There are also different categories of tattoos.

First, there are flash tattoos that are pre-made and used for either showcasing to potential clients the skills and creative scope of a particular tattoo artist, or simply to be turned into a stencil for rapid tattooing.

Second, there are, of course, also custom-made tattoos. According to Minahan^[2] these can be further split into (1) contemporaneously-placed (or freehand) tattoos and (2) preliminary sketched tattoos. As per the definition, in the first case, tattoos are designed and applied on a person’s body without making any prior sketch on paper; while in the second case, the stencil (or drawing) is designed before putting ink on the actual person’s body.

And what about copyright?

Does copyright apply to tattoos? Most likely yes, for as long as they are original works.^[3]

And who owns this copyright? Aha! The first tricky question.

It might be tempting to reply here that a tattoo artist owns the copyright in the tattoo s/he made, since s/he is an artist, right?

Not so fast.

What if this tattoo artist is an employee of a tattoo parlour? Then we might need to look into an employment agreement (as it might provide for an assignment of copyright), as well as into the specific employment laws of a country where this situation takes place…

To note that in the US, generally speaking, a copyright-protected work created as part of employment is considered a work for hire and the rights therein automatically belong to the employer. Once again, generally, it would not be the case in Europe, but here one really needs to see the laws of the particular country.

Thus, a side note for tattoo artists and tattoo parlour owners: Have this question sorted out in a proper agreement in advance!

Another twist.

What if a tattoo artist was given precise instructions or perhaps even a ready-made sketch by a (future) tattoo bearer? Wouldn’t this set-up result in joint ownership of copyright, or depending on the involvement, perhaps even in all copyright belonging to a tattoo bearer? It might; and that’s another point to consider in advance.

So, see: it really depends.

But even assuming the situation is straightforward: an independent tattoo artist created an original tattoo for her/his client and s/he owns copyright in this artwork; what does this copyright entail?

Normally, when talking about copyright, there are two sets of rights:

(1)  economic rights and

(2)  moral rights.

Economic rights are there to ensure that an author retains control over and is able to derive financial reward from the use of her/his works by others. Moral rights protect the author’s right of attribution (the right to claim authorship) and right of integrity (the right to refuse a modification of the author’s work).

Control, financial reward, authorship, integrity,… Would it mean that a tattoo artist can object that a tattoo bearer changes the tattoo? Or prohibit a tattoo bearer from showing the tattoo in public? In other words, what does having a copyright actually mean for a tattoo artist?

Perhaps the court knows the answer?..

In the absence of clear provisions in the law, one might seek answers in court practice.

Thus, in Belgium, there was indeed an interesting case where the Court of Appeal^[4] delivered some guidance on navigating tensions between tattoo artists’ copyright and tattoo bearers’ personality rights. Thus, the court introduced a split in the context of tattoos, between:

(1)  the design of the tattoo in the abstract and

(2)  the actual physical tattoo applied to the human body.

This is an important split, as according to the court, once the (1) design becomes (2) the physical tattoo, the tattoo artist loses moral rights over the work.

In other words, once the design is inked on the body, the tattoo artist has no more say in whether a tattoo bearer modifies this tattoo, removes it completely or does whatever s/he pleases. Furthermore, once a tattoo is applied, a tattoo artist loses her/his right of disclosure and attribution. Therefore, the personality rights in the view of the Belgian court (at least in the case at hand), undoubtedly prevail over copyright.

But what about economic rights?

This is a domain giving rise to quite some disputes already, though mostly in the US, and on many counts (sadly for legal clarity) ending in settlements. In what follows, I will mention several most known cases.

First of all, Mike Tyson’s iconic tattoo case^[5].

This dispute was brought not against Mike Tyson as a tattoo bearer, but rather against the third party, Warner Brothers Entertainment “for copying, distributing, displaying and making unauthorized derivative work featuring the tattoo which S. Victor Whitmill freehand-tattooed on Mike Tyson’s face”. This dispute arose when Mike Tyson’s alike tattoo was placed on the face of the hero in the movie Hangover II.

The court did not get a chance to rule on this case, as it ended in a settlement. Had it not, that would have been a very curious one, as arguments could very well be presented for both sides.

On one hand, Whitmill tattooed a famous recognizable tattoo, so why would it be okay for a third party - Warner Bros - to use this tattoo without permission and compensation? On the other hand, in the case of Mike Tyson, this tattoo became in a way an identifier of his undoubtedly ultra-famous persona. So arguably, this is just a part of who Tyson is. Wouldn’t it be logical that it is only Mike Tyson who is entitled to decide whom to allow the use of his likeness (which happen to include a tattoo)?

And to add another twist - provided that Whitmill did not really create this special tattoo design, but rather appropriated it from Maori culture, could there even be a copyright claim in the first place?

The last point triggers an interesting further direction for discussion over the relation between traditional cultural expressions and copyright in tattoos. Cultural appropriation is a very sensitive issue - harmful and disrespectful in many ways. Shouldn’t there be strict norms, whether legal or at least just social, to prohibit such a cultural appropriation? And where does it leave a tattoo artist who was inspired by, for example, the indigenous culture in the creation of his tattoo design? Should there be lines not to be crossed? In the absence of norms and precedents dealing with this matter, it clearly remains a grey zone.

Moving on.

A very recent case that was decided at the end of September 2022 by an Illinois jury in the US. A tattoo artist Catherine Alexander vs. World Wrestling Entertainment Inc and Take-Two Interactive Software Inc^[6] over the use of tattoos the artist made for wrestler Randy Orton. These tattoos were featured without permission of the tattoo artist in the "WWE 2K" video-game series. The jury awarded the tattoo artist $3,750 in damages.

Does it mean game producers should avoid featuring tattooed players in their games? Doesn’t Orton own his own body?! Let’s stretch the same reasoning to the absurd - would the hairdresser also has a say if the haircut s/he created for someone is featured in an online game? This case will (and I would say - must) go into appeal, so it remains to be seen what will ultimately come of it.

In fact, there was also another case two years earlier (in 2020) over more or less the same matter yet with a completely different outcome. Solid Oak Sketches vs. 2K Games^[7] over tattoos of LeBron James, Eric Bledsoe and Kenyon Martin featured in a number of basketball video-games. In the court’s view, in this case, an accurate depiction of a real person in given circumstances of a dynamic video game would not constitute a copyright infringement. And rightly so!

Legally speaking, in this case, the court relied on three copyright defences/doctrines: (1) de minimis use, (2) implied license, and (3) fair use. To note, however, that what worked in one case might not work in another, and certainly might be treated completely differently in another jurisdiction.^[8]

The implied license might be a good argument, as it would be logical for the clients of tattoo artists to reasonably expect that they would be allowed to display their tattoos publicly, as well as pose for pictures without fearing that they might violate tattoo artists’ rights. Bodily autonomy and personality rights would probably protect the tattoo bearers from any claims. At the same time, it’s dubious that an implied license would automatically extend also to third parties - video game creators, film makers etc. 

Here the safest way to go would be for the tattoo bearer to secure an explicit license from the tattoo artist for the use of the tattoo in any way possible, including commercial.

And it’s not only tattoo artists against game makers…

There is also another interesting ongoing case from a different angle that I wanted to mention, namely a case over the tattoo of Miles Davis created by the tattoo artist Kat Von D (Katherine Von Drachenberg)^[9]. This case is brought against a tattoo artist by the photographer whose artwork has been used to create a tattoo.

Jeffrey (Jeff) Sedlik, the photographer, who took an original photo of the famous jazz musician Miles Davis and owns the copyright in that photo, alleged that Kat Von D infringed his copyright by tattooing the reproduction of this photo onto her client and displaying the images thereof on her social media accounts. This case is currently moved to trial and is for the jury to decide. However, the court made a preliminary fair use and substantial similarity analysis and essentially concluded on the presence of transformative use, since Kat Von D freehand-tattooed this photo, adding her interpretation to the ultimate tattoo. Whether this interpretation will hold at trial remains to be seen.^[10]

Generally speaking, using someone else’s artwork (be a photo, or a drawing, or even a cartoon character) in making a tattoo constitutes a copyright violation. Thus, for tattoo artists, it is always advisable to either create their own unique designs or secure a proper license.

By the way, some of the artists whose works are popular or just fit well with tattoos sell the so-called “tattoo passes”, which are licenses allowing the buyer to reproduce a tattoo on their body.

Finally, opportunities (and related risks) might also come from direct partnerships of tattoo artists with other parties.

For example, tattoo artists might explore business opportunities related to the use of their art in other industries. One of the logical options for that would, of course, be fashion. And perhaps one of the most known examples of tattoo-fashion cooperation is Hardy/Audigier.

Thus, in 2004 a tattoo artist Don Ed Hardy, or as InStyle magazine called him “a surf bum slash art prodigy” licensed his tattoo artwork to a fashion designer Christian Audigier. Things went south between the two. Five years later, Hardy sued Audigier (and his holding company, Nervous Tattoos) for breach of contract, withholding royalties and launching a line “Ed Hardy by Christian Audigier” against the terms of the licensing agreement. This case was settled. The problem was, as Ed Hardy recalls himself in his memoir “Wear Your Dreams: My Life in Tattoos”, that he had “entered into the original deal so stupidly, without any legal advice”. That left Audigier largely in control of the brand.

Hence, the bottom line is, the better worked out the initial deal is, the smoother the ride along the way.

To conclude…

There are, of course, many more interesting cases and many more interesting tattoo-stories but this article is already getting much longer than intended, so to sum up:

Tattoos are copyrightable but who will own this copyright and to which extent - will depend on a number of circumstances.

Copyright in the tattoo design and the rights in the tattoo placed on one’s body are not the same. While, in the absence of clearly defined legal norms and consequential court practice, it would always be a good idea to make use of contractual freedom and just define the questions that can potentially give rise to disputes yourself. And here it is not about trying to create a 100-page legal document, addressing all the possible situations, but rather about being clear on the most crucial questions.

Remember, prevention is always better than cure.

^[1] which is sadly not always the case everywhere… but this is a different topic.

^[2] Michael C. Minahan, Copyright Protection for Tattoos: Are Tattoos Copies?, 90 Notre Dame L. Rev. 1713 (2014). Available at: http://scholarship.law.nd.edu/ndlr/vol90/iss4/12

^[3] In the definition of the US Copyright Act, copyright applies to an original work of authorship fixed in any tangible medium of expression. This means that there is (1) a criteria of originality and (2) a criteria of fixation on a tangible medium. The first one might prove problematic if the tattoo is nothing but a quote, or a “classic” depiction of a cartoon character (which can - and will - be subject of someone else’s copyright, by the way!). However, in respect of the fixation on a tangible medium, there are some critics, who stress that the human skin is not permanent, not fixed and in general does not qualify as object where this “work of authorship” could be fixed. An object is not alive; while the human skin is. Despite the existence of this opinion, generally speaking, copyright still applies to tattoos in the US. In the continental Europe, theoretically the fixation/permanence is not even a requirement for existence of copyright, allowing to protect also ephemeral works. For tattoos in Europe that would mean - if tattoos are original, it is safe to assume that there is copyright.

^[4] Case No. 2007/AR/912

^[5] Whitmill v. Warner Bros. Case No. 4:11-CV-00752

^[6] Alexander v. Take-Two Interactive Software, Inc., Case No. 18-cv-966-SMY

^[7] Solid Oak Sketches LLC vs. 2K Games, Inc. 1:16-cv-00724-LTS-SDA.

^[8] e.g. fair use doctrine is the US copyright doctrine. In the Commonwealth, the doctrine of fair dealing is applied instead, which is not the same as fair use; while in the continental Europe there is no fair use doctrine all together, but rather specific exceptions to copyright subject to the three step test.

^[9] Jeffrey Sedlik v. Katherine Von Drachenberg et al. Case No. 2:21-cv-01102-DSF-MRW

^[10] The currently still pending Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith case before the Supreme Court will also most probably influence the outcome of this case, given that the question of transformative use under the US copyright law is at the core of the said dispute. Curiously, Sedlik is also an expert witness for Goldsmith in her case.

Preview image: Benjamin Balazs, a.k.a. brenkee, CC0 by Pixabay