As recently reported by Bloomberg Businessweek, tattoos are increasingly becoming the subject of copyright infringement lawsuits filed by the tattoo artists, particularly where the tattoo has been inked on a celebrity or sports figure and is subsequently displayed in a video game or movie.
In one highly publicized case, the artist who inked Mike Tyson’s face tattoo sued for copyright infringement over the use of the tattoo design in the movie The Hangover Part II. During the movie, a character awakens from a night of debauchery only to find that he has had a tattoo inked on his face that is similar to Mr. Tyson’s famous tattoo. In another case, a tattoo artist filed a lawsuit against video game maker Electronic Arts and former NFL player Ricky Williams with respect to a tattoo that he had inked on Williams that appeared on some video game covers. Many similar cases have been filed and settled.
So who owns the copyright rights in a tattoo? Copyright generally protects any works fixed in a “tangible medium of expression” that have some degree of creativity and are not transitory in nature. As soon as an artist puts brush to canvas, or in this case, needle to skin, copyright rights arise in favor of the artist. Those rights typically include the right to copy, display and distribute the work. In cases where a copyright owner takes the additional step of obtaining a copyright registration, the owner may be entitled to certain “statutory damages” in a litigation filed to enforce his rights, regardless of the manner in which the owner has actually been damaged. These “statutory damages” can range from $750 to $150,000 per copyrighted work, depending on the nature of the unauthorized use.
Tattoos, however, provide a unique situation inasmuch as the medium of expression is another person’s skin, and courts have not thus far firmly established the nature of the tattoo recipient’s rights. Surely, the tattoo recipient cannot be expected to forever refrain from displaying the tattoo in photographs or on television. As one court recently noted, “[t]he norms of tattooing necessitate that some of these rights must pass at least partially to the tattoo recipient through an implied license.” As recent cases have shown, however, the tattoo recipient may nevertheless be subject to a copyright infringement claim should the tattoo appear in, for example, a video game or movie.
Notably, the NFL Players Association has advised its clients to obtain a waiver of claims or a license from a tattoo artist when receiving a new tattoo. A stronger option, although possibly more expensive and difficult to obtain, would be to have the artist execute a work-for-hire agreement or a copyright assignment, granting all rights in the work to the recipient. The tattoo recipient would then control the rights to display the design. Regardless of which approach is taken, recipients of tattoos that will be widely displayed in media should consult with an experienced copyright attorney to determine how best to protect against an unwanted lawsuit.
