Tattoos, a form of body art with ancient roots, have evolved significantly over time, becoming a multi-billion dollar industry today. As tattoos gain prominence, so do questions about their intellectual property rights, particularly copyright. But can tattoos be subject to copyright? Let's delve into this intricate intersection of art and law.
Tattoos, as physical artworks, are indeed eligible for copyright protection. The U.S. Copyright Office, for instance, accepts registrations for tattoos under the category of "pictorial, graphic, and sculptural works." However, the copyrightability of tattoos isn't as straightforward as it might seem, given their unique nature and the legal complexities involved.
Copyright Protection for Tattoos: The Basics
The Copyright Act of 1976 grants protection to "original works of authorship fixed in any tangible medium of expression." Tattoos, being original artworks fixed on the skin, seemingly meet these criteria. However, the tangibility of tattoos is where the waters start to muddy.
Tattoos are intangible when they're on a person's skin, and even when they're photographed, the copyright protection extends to the image, not the tattoo itself. This intangibility poses challenges in enforcing copyrights, as it's difficult to prevent others from copying the tattoo without infringing on the model's or photographer's rights.
Copyright in Tattoos on Models
When a tattooed model poses for a photograph, the copyright in the resulting image belongs to the photographer, not the tattoo artist. The model has no more rights to the image of their tattoo than they do to their own likeness. This is because the Copyright Act grants the copyright to the creator of the fixed expression, not the subject matter.
However, the model does have the right to control the use of their likeness, including their tattooed skin, through publicity rights or "right of publicity." This right allows them to prevent others from using their likeness for commercial purposes without their consent.
Copyright in Tattoos on Photographs
When a tattoo is photographed, the copyright in the resulting image belongs to the photographer, provided they are the author of the work. The tattoo artist has no more rights to the image of their tattoo than they do to any other photograph they didn't create.
However, if the photographer and the tattoo artist collaborate to create the image, they may own the copyright jointly. In such cases, both parties should have a clear agreement about copyright ownership and usage rights.
Copyright Infringement and Tattoos
Copyright infringement occurs when someone uses a copyrighted work without permission, resulting in damages or profits for the copyright holder. In the context of tattoos, infringement can occur in various ways:
- Replicating a tattoo without permission from the artist, especially if it's a distinctive or unique design.
- Using a photograph of a tattooed model without the model's consent, if the use is commercial or otherwise violates their right of publicity.
- Copying a tattoo from a photograph or another medium without permission from the copyright holder (the photographer or the tattoo artist, depending on the circumstances).
Real-Life Cases: Tattoos and Copyright Infringement
One high-profile case involving tattoos and copyright infringement is Victor Whitmill v. Warner Bros. Entertainment Inc.. Whitmill, a tattoo artist, sued Warner Bros. for copyright infringement, alleging that the studio used his Mike Tyson tattoo design without permission in the film The Hangover Part II. The case settled out of court, with Warner Bros. agreeing to pay an undisclosed sum to Whitmill.
Another case, Lukjanov v. McDonald's Corp., involved a Russian tattoo artist suing McDonald's for using his tattoo design on a cup without permission. The case was dismissed, with the court ruling that the design was not original enough to warrant copyright protection.
In conclusion, tattoos can indeed be subject to copyright, but the unique nature of tattoos and the legal complexities surrounding them make copyright protection and enforcement challenging. Tattoo artists, models, and photographers should all be aware of their rights and responsibilities when it comes to tattoos and copyright. As the tattoo industry continues to grow, so too will the need for clear, consistent legal guidance in this area. If you're a tattoo artist, model, or photographer with questions about copyright, it's always a good idea to consult with an intellectual property attorney.