When you decide to get a tattoo you consider the desired design and where to have it on your body; the legal implications of a tattoo are rarely envisaged. However, recent copyright infringement cases have brought the fashion statements to the fore of legal discussions, especially with regards to celebrity tattoos.  Can tattoos be considered intellectual property and if so who owns the copyright of a tattoo, the tattoo designer or the person who receives the tattoo? These questions raise some interesting legal questions and discussion.

Can a tattoo be copyrighted?

The US Copyright Office states that a copyright “protects original works of authorship that are fixed in a tangible form of expression.” Although not a traditional art form, tattoos are designs which are fixed to a person’s skin, and so long as the design is original, its use is technically protected by copyright. Whilst the tattoo on the person’s body is their property, the assertion causing legal headaches relate to the design rights, and whether these reside with the person who designed the tattoo – usually the tattoo artist, or the individual sporting the tattoo itself. Copyright and reproduction rights in the world of art are not always clear-cut in legal terms, and the question of body art further muddies the waters. 

The fear factor

The most well-known legal case of tattoo copyright infringement was that of Victor Whitmill, the designer and tattoo artist of Mike Tyson’s infamous face tattoo. He accused Warner Bros. of copyright infringement when a very similar tribal tattoo was used upon Ed Helms’ character in the film “The Hangover Part II.” The case highlighted that tattoo artists’ claims are perceived to have legitimate foundations, with Warner Bros. agreeing to settle outside court. Although the terms of the deal were undisclosed, copyright holders are legally able to receive statutory damages of between $750 and $30,000.

Most recently tattoo copyright infringement has been put into the spotlight by popular NFL player Colin Kaepernick due to his Yahoo! Fantasy Sports advert. It displays his chest tattoos for the majority of the advert, causing concern as to whether he, and in turn the NFL Players Association (NFLPA), are breaching copyright laws. The NFLPA are so concerned by the legal implications of tattoos and copyright infringement for their group licensing programmes that they have labelled it as a “pressing issue,” according to Forbes.

Legal precedents

To date all cases relating to tattoo copyright have been settled outside court, meaning there is no legal precedent with to work from, making it a potential legal minefield for many public figures with tattoos.The uncertainty in the legal stance on copyrighted tattoos has led the NFLPA to ask players to obtain releases for all future tattoos and to also attempt to obtain them for all their existing tattoos. Their aim is to avoid any potential law suits by gaining documented sole ownership of the tattoos, as if they were work-for-hire, specially commissioned for the person who receives the tattoo.

This would prevent any legal action as a result of the players endorsement deals and the presentation of their tattoos during publicity. As many players’ will be unable to get releases for existing tattoos the NFLPA may even resort to making players sign indemnity contracts so that they are not held responsible and will therefore hold none of the burden should a tattoo artist take legal action against a player.

Legal implications

The lengths to which the NFLPA are going to protect themselves suggests that this could become a more common problem for celebrities with tattoos. However, it does seem implausible to suggest that a tattoo artist could essentially own a part of someone else’s body. This is where the doctrine of fair use comes into play and a person’s right to publicity could override the copyright infringement argument.

As tattoos can be classified as intellectual property, from a simplistic viewpoint a tattoo cannot be copied.  As was the case with Warner Bros. who were essentially reproducing Whitmill’s tattoo design without his permission and would therefore be unable to apply the doctrine of fair use, as the presiding Judge made clear during the case.  However, with the design of a rose (a very common tattoo) many tattoo artists interpretations could well be very similar – but this does not mean that one is necessarily violating the others copyright. When you go to a tattoo parlour you are paying for a service, and the implicit contract is that you can display that tattoo on your body when you choose – that is the very permanency of tattoos.

The NFLPA’s reaction to the issue suggest that celebrities do not legally own their tattoos, and this affects how they must dress when appearing for endorsements, in the public eye at official events and when licensing out their likeness for video games. A tattoo is a permanent fashion statement, and can become a part of that person’s identity. Just take Rick Genest aka “Zombie Boy” as an example. If lawsuits were taken against him by the tattoo artists that inked his body for each ‘copyright infringing’ advert, he would be in a fairly serious legal situation.

IP law vs common sense

When it comes to looking at ownership of tattoo works, common sense will hopefully be applied by the court to establish whether a true violation has occurred. Where an artist has blatantly copied another’s design the law exists for their protection. However a blanket ruling of copyright ownership in favour of the tattoo designer would produce the impractical circumstance whereby the artist would own a portion of another person’s body, and have a say in how that person can present themselves in the media. Should this be the case, each individual tattoo would be treated like a branded item of clothing on TV – surely this is legally impractical on several levels.

The publicity and debate concerning tattoo copyright could be seen as a tenuous attempt for tattoo artists to capitalise on their designs used by celebrities; but it is also another indicator of how outdated current IP laws are and how the pace of modern culture demands new legislation to maintain equilibrium between IP rights and common sense.

Stuart Whitwell is joint managing director at Intangible Business