Who Owns Your Tattoo?
There’s a long list of people who have a stake in the art on your skin, from you and your artist to, possibly, the artwork’s original designer and anyone whose image is depicted in your tattoo. Read on so you know your rights.
©arefully read the following: If you think that you alone have the rights to your own skin, you may be wrong. The idea of another person, or even a corporation, claiming ownership over your body may seem absurd, but as recent lawsuits for copyright infringement of tattoo art have implied, the courts could very well decide who gets a piece of you tomorrow.
In April 2011, the big question became “Who owns Mike Tyson’s facial tattoo?” when the artist who created that tattoo, Victor Whitmill, sued Warner Bros. for copyright infringement, claiming the company prominently featured his tattoo design in The Hangover 2 and its advertising. In the film, a bachelor party leaves its hapless heroes with no clue of what happened the night before, just a few bread crumbs, including a facial tattoo on Stu (played by Ed Helms)—a tattoo that was practically the same one Whitmill had inked on Tyson. Whitmill’s lawsuit sought damages and an injunction to stop the use of the tattoo in the film, which would’ve delayed its big Memorial Day release. The injunction was not granted. However, Catherine D. Perry, the federal district court judge presiding over the case in St. Louis, did say that Whitmill had a “strong likelihood of prevailing on the merits for copyright infringement” and that most of the arguments put forward by Warner Bros. were “just silly.” The case ended up being settled out of court soon after the movie’s release.
So what’s going on here? Does Whitmill own the rights to something on Tyson’s skin? The U.S. Copyright Office states that copyright “protects original works of authorship that are fixed in a tangible form of expression.” Whitmill’s attorney, Michael Kahn of The BrickHouse Law Firm in St. Louis, says that when he was presented with the details of the case he didn’t have to think twice about its merits. “As soon as Victor described what he had created, there was no doubt in my mind that this was something that would be protected by copyright,” Kahn says. “Human skin is as tangible a medium as canvas or print material that photographers use. I had never really thought about copyright and implications with tattoos, but as soon as [Victor] called, my immediate reaction was, yes, if this is an original work, it is protected by copyright.”
According to Whitmill, he drew Tyson’s tattoo freehand right onto his client’s face. It wasn’t copied from a flash sheet of pre-drawn tattoo designs, nor did Tyson bring in a design of his own to be copied. In fact, Tyson’s original idea, according to Kahn, was a series of diamonds and hearts, arranged almost like playing cards on his face, but the retired boxer changed his mind after seeing a tribal-style piece Whitmill had drawn. Considering the nature of the design, there is the additional question of whether it was truly Whitmill’s at all or whether it was a copy of ancient tribal art. But since it can be argued all art is in some form derivative, it doesn’t actually matter; the courts have held that a work need not be unique to be copyrighted and that copyright protects specific expression of concepts and ideas, even common ones.
With more than a few legal scholars supporting the position that one can copyright a tattoo (as was also implied by Judge Perry’s statement), the question becomes: Who owns that copyright? In the Whitmill case, it turns out Tyson had signed an agreement stating that Whitmill alone owned the rights to the tattoo. It’s safe to say, however, that most tattoo clients do not sign such agreements. So that means ownership depends on the particular facts surrounding the work.
First, did the artist create the tattoo design independently or was it a collaboration with the client? If they did collaborate, both could be joint copyright owners, meaning they each have a right to do whatever they want with the work independently. In that case, the artist or the client could decide to license the use of the design for free, or they could each try to make some money off of it. But if either of them did make money from licensing the design, the law says that profits would need to be split.
If the tattoo was not a collaboration because a client brought in an original design, the client may believe he or she is the true owner of the design and that the resulting tattoo is a “work for hire.” But that’s a misconception. In order for a tattoo to be considered a work for hire, both parties must have agreed in writing that it’s a “work for hire” and the commissioned work has to fit the uses listed under copyright law—two things that don’t seem to apply to tattoos. (However, the “work for hire” argument could apply if the owner of the shop where the artist works claimed rights to the tattoo, but only if the tattooist working for that shop fits the definition of an employee.)
So that brings us to the question most people with tattoos want to know: If a tattoo isn’t a collaboration or considered a “work for hire,” what rights does the wearer of the tattoo really have? For example, should Tyson have to cover his face every time there’s a camera around because someone else owns the right to his tattoo and he no longer has the right to publicize it?
Many legal scholars—as well as the Warner Bros. legal team and Kahn—argue that a client, such as Tyson, has an implied license in the tattoo, meaning he has the right to display the tattoo, even in front of cameras, without permission. Kahn explains why: “When you apply a work of art to a visible part of a person’s body, whether a celebrity or not, there’s an implied license that, so long as that tattoo stays on that person, it becomes part of that person’s identity and that person can go wherever that person wants.” Meaning, if Warner Bros. wants to put Tyson in a movie or Tyson wants to go back to boxing, he doesn’t have to get the tattoo artist’s permission to have cameras film him.
However, Kahn explains, “If you took the actual piece of art off of Mike Tyson, that’s when you were making an unauthorized copy.” So it could be argued that taking the tattoo off of Tyson and putting it on Helms’s character in The Hangover 2 and its advertising was not unlike taking the tattoo off Tyson and putting it on a piece of merchandise to be sold for profit. And, to make matters even more complicated, since Tyson’s tattoo has become such a big part of his identity, it could even be argued that if the design were used without permission to sell boxing gloves, Tyson himself could potentially sue the company for violating his right of publicity since that right protects someone whose identity has some commercial value (Tyson) from having others (the makers of the boxing gloves) cash in on their name, likeness, and other indicators of their identity.
What does this mean for you? Simply put, you’re free to display your tattoo as you want, but those who designed the tattoo would be the ones who could profit from that design should it be used somewhere other than your body or perhaps even on your body if the tattoo is commercially exploited.
Your artist, however, needs to be more careful—especially when it comes to inking images of famous people on the skin of others. Consider the portrait tattoo for a moment: If Marilyn Monroe were still alive, and she believed that Megan Fox was becoming more famous (and making money) in part due to her tattoos—including the one with Marilyn Monroe’s likeness—then Monroe herself might have a case that the artist who inked Fox was violating her right of publicity by copying her image without permission. Of course, there is the right of free speech and artistic expression to be considered, but for tattooists commissioned to do celebrity portrait tattoos, it’s still best to add creative elements that transform the work so it’s not an exact photo-realistic copy, but more of a caricature or artistic commentary on the original image so that it falls under the doctrine of fair use.
In fact, fair use was a major argument of the defense in the Warner Bros. and Whitmill case. Warner Bros. claimed the tattoo on Helms’s character was intended to be a parody so it was protected as fair use. It was one of their stronger arguments, but it was heavily debated by legal experts in the press because parody, and fair use in general, is a big gray area of copyright and trademark law. Judge Perry noted that she wasn’t buying Warner Bros.’s fair use argument: “This use of the tattoo did not comment on the artist’s work or have any critical bearing on the original composition. There was no change to this tattoo or any parody of the tattoo itself. Any other facial tattoo would have worked as well to serve the plot device.” (It should be noted, though, that some experts disagreed with the last sentence.) Still, the case never went to trial and was settled out of court, so the issue was left undecided.
And since the issue is still undecided, artists need to be mindful not only when they’re tattooing images of famous people on skin, but also when they’re tattooing famous people at all, as two other cases settled outside of court have shown. In 2005, Portland, OR, tattooist Matthew Reed sued Rasheed Wallace and Nike to stop them from using the custom tattoos he designed for the basketball star in a Nike sneaker ad that focused on the tattoo and even simulated its creation. Also in 2005, U.K. tattooist Louis Molloy threatened to sue David Beckham if he went ahead with a promotional campaign that focused on a guardian angel tattoo Molloy did for him. With no clear answer on how judges would decide in these cases, the athletes and artists decided to settle outside the courts.
The settlements in all the aforementioned cases are confidential, but it can be assumed that some serious money was involved. The details are complicated—and dependent on when the artists filed for copyright registration—but statutory damages for copyright infringement can range from $750 to $30,000 and can be as high as $150,000. Plus, actual damages could include any profits of the infringer that are attributable to the infringement as well as a fee for damage to the artist’s reputation. Whatever this amount may add up to, it’s likely cheaper and easier for tattooists to be paid a licensing fee for their designs in certain cases. And the easiest solution of all? Having artists and clients set out the rights to their tattoo designs in advance—whether it be a license or an assignment of full ownership—so they can decide who owns the tattoo before the courts do it for them.