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.