This post is courtesy of our law clerk Ashley Franco, an exceptional student at California Western School of Law who just finished her second year:
The answer to the question posed by the title to this post is the typical lawyerly “it depends.” It is important to distinguish between the ownership rights to the tangible tattoo itself (the inking of the skin) and the exclusive rights that may be conferred by the copyright laws for the tattoo design. The ownership rights to the tangible tattoo (the skin itself) of course belong to the tattoo bearer. However, the “author” of the tattoo (i.e. tattoo designer or artist) may have exclusive copyright rights in the design of the tattoo.
Under Section 101 of the Copyright Act, a creator of an original work that is fixed in a tangible medium of expression for more than a transitory duration is granted copyright protection for the original elements of the work. A tattoo may be an original work and of course it is fixed in a tangible medium (the body) for more than a transitory duration so copyright law applies to tattoos and the tattoo “author” may be entitled to copyright protection for original tattoo designs. It is important to remember that copyright only protects “original” works of authorship so non-original tattoos (i.e. a generic shamrock for example) may not qualify for copyright protection.
Copyright protection grants the copyright owner six exclusive rights: (1) the right to reproduce (2) the right to prepare derivative works (3) the right to distribute (4) the right to perform the work publicly (5) the right to display the work publicly, and (6) the right to perform the work publicly by digital transmission. To determine the ownership of the exclusive rights, it is important to determine who is the “author” of the tattoo. The “author” may be the tattoo artist, the tattoo bearer, or both, depending on who contributed to the tattoo design. The “author” may also be the tattoo artist’s employer, through a copyright doctrine known as the “work made for hire” doctrine.
As tattoos have gained popularity, more suits have arisen by tattoo artists claiming copyright infringement. Most tattoo copyright infringement cases filed by artists are settled. Therefore, the courts have yet to decide who owns what rights in a tattoo.
The case of Whitmill v. Warner Brothers is an interesting “tattoo infringement” case. In Whitmill, Victor Whitmill designed a now-famous tribal tattoo for Mike Tyson, which he had tattooed on his face. A copy of the tattoo later appeared in “The Hangover II”, on Ed Helms’s face. Thereafter, Whitmill filed suit seeking monetary damages for copyright infringement of the Tyson tribal tattoo, and a preliminary injunction preventing the release of the film. The trial judge commented that tattoos could be in fact be copyrighted, and that there was a high likelihood of Whitmill (the tattoo artist) prevailing on the merits. However, the parties settled before the court could weigh in on how the copyright laws would be applied to tattoos.
Many suits have arisen against the NFL and NBA and their marketing partners because athletes’ tattoos often are copied and displayed on an array of media (i.e. posters, video games). As a result, athletes and marketing companies now often implement contracts which require tattoo artists to waive their rights to copyright.
We expect that tattoos will continue to gain in popularity among celebrities, athletes and common folk alike, and tattoos will become more and more elaborate and unique. Therefore, it may be a wise investment for a person spending a lot of money to get a unique, elaborate tattoo or a tattoo artist designing a unique tattoo, to have an attorney draft a contract that clearly states who owns what rights in and to the tattoo.