I was considering a post about copyright in tattoos even before I read about a recent case. This blog post raises some interesting questions about who owns the rights in a tattoo, and trying to answer them seemed like an interesting exercise; a chance, at least, to review some basic concepts.
Then I read these stories about a threatened lawsuit over an upcoming movie and realized that the topic was more current than I had suspected. The case involves an apparent imitation of Mike Tyson’s famous facial tattoo being used in the movie “Hangover II,” and a lawsuit from the tattoo artist to enjoin release of the film. As one of the bloggers about the case says, it seems to just be an attempt to get a settlement out of Warner Bros. — perhaps a deserved settlement, one might add — but it reminds us that these are not trivial issues and are worth a few minutes of our attention.
The Tyson case, and the lawsuit over a tattoo on the arm of basketball player Rasheed Wallace back in 2005, raise the issue of who owns the rights in skin ink. The answer is a little bit complicated, since rights vest when original work is fixed in tangible form. Actually applying the tattoo is certainly fixation in tangible form, so the actual tattoo artist will often hold the rights. But sometimes a design may be done by someone else, often the “tattooee” him or her self, prior to the actual tattooing. If an original design is done on paper, then copied on to skin, the rights are likely held by the designer. But simply providing the surface on which the tattoo is applied is not sufficient for the person who wears it to claim rights in a tattoo.
One possibility about ownership that should be accounted for is work for hire. Here it is important to remember that simply paying for something does not make it work for hire. If a tattoo artist is a regular employee of a shop, the tattoo design may belong to the shop owner as a work for hire. But it will almost never belong to the person being tattooed just because they paid for it; an explicit agreement would be necessary for that.
Once we understand that the copyright in a tattoo is not always, or even usually, held by the wearer, the issue of remedies arises. The two cases involving athletes and their tattoos being shown on TV or in the movies seem straightforward as to remedies — the artists want to be paid for uses of their work. In the Wallace case there was a settlement that presumably gave the artist some money, and it seems likely that the same thing will happen regarding Tyson’s facial tattoo. but it is important to realize that some copyright infringement remedies — such a destruction or confiscation of the offending item — will simply not be available to a rights holder even if the infringement is especially blatant. If the application of the law to this area of artist production seems bizarre, we ought to remember that courts usually have some measure of common sense, and realizing that some of the usual remedies for infringement will simply not be available goes a long way to reducing the sense of outrage.
Finally, that first blog post I linked to above raises the question of whether or not a person who has a tattoo in which the rights are held by someone else would be able (voluntarily!) to have the tattoo removed. The issue here is artists’ moral right to not have their work destroyed without their consent. In the United States these rights are conferred by section 106(A) of the Copyright Act only on a limited group of visual artists, but there is no obvious reason why a tattoo artist would not be included in that group. Here again it is important to think about the kind of remedies a court might resort to. There is a specific provision in U.S. law that limits the right of a visual artist to prevent the removal of a work of art that is incorporated into a building, so that where a building was being torn down, for example, the remedies for the artist are limited such that they cannot force the building to remain standing. One would hope that our courts would take this example and analogize it to the case where a tattoo wearer wants to be rid of a tattoo; it would seem inhumane to order a person to continue to wear a tattoo against their will, just as it would be to order someone to have a tattoo removed because of alleged infringement.
In the end, there is no reason in principle that ordinary copyright provisions should not apply to tattoos. But because tattoos are works of art on human flesh, courts would be compelled to take the medium into account in order to avoid offensive and inhumane results. The way to do this is to limit the remedies available to a tattoo artist whose work is infringed. While money damages could still be appropriate, as in the Tyson and Wallace cases, other types of remedies that might fundamentally threaten personal autonomy and well-being simply should never be considered.
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