Can Tattoos Be Copyrighted?David Lizerbram
Mike Tyson is known for many things, from boxing to ear biting. He has also made many movie and TV cameo appearances, and is well known for having a Maori-inspired tattoo covering the left side of his face. S. Victor Whitmill, the creator of the tattoo, has never had a problem with Mike Tyson making appearances in movies and TV shows with the tattoo, including The Hangover, but when the producers of The Hangover Part II attempted to duplicate that tattoo on Ed Helms’ face for the movie, Whitmill sued Warner Brothers for copyright infringement. The case ultimately settled before any court ruled whether a tattoo is a work covered under the U.S. Copyright Act. However, the judge did state, in a decision not to grant an injunction to stop The Hangover Part II from hitting theaters, that Whitmill was likely to succeed on the merits of the case, suggesting that an artist can own a copyright to a tattoo just as one might own a copyright to a painting.
So, can a person own a copyright to a tattoo?
At first glance, it would appear that tattoos should be subject to copyright law. A tattoo is a work of art – a painting, just with a different type of canvas. When a copyright is granted for a work, the copyright owner is given the exclusive right to reproduce that work anywhere. Copyright ownership is not the ownership of the material the work is placed on – the canvas, the page, or in this case, the face – but the underlying image itself. On the surface, it seems that a tattoo should be as copyrightable as a painting, but there has never been a court verdict or any other legal ruling concerning whether a copyright on a tattoo can be enforced.
At least two other lawsuits have entertained the idea of copyright infringement based on a tattoo. In 2005, Louis Malloy threatened to sue for copyright infringement when David Beckham planned to feature the tattoos created by Molloy in an ad campaign. That same year, Matthew Reed filed a federal lawsuit to keep NBA basketball player Rasheed Wallace from featuring the tattoo that he had created for Wallace in a Nike ad. Both suits settled out of court before any judge could rule on the underlying issues.
While there is no court decision on the copyrightability of tattoos, it is important to note that “tattoo flash” is copyrightable. Tattoo flash refers to printed designs that can be turned into stencils for rapid tattooing. The copyright is owned by the person who creates the image. These designs cannot be copied and distributed without the copyright holder’s permission. Tattoo flash can be sold, unlike a tattoo on a person, and can be transferred between owners.
Section 102 (a) of the US Copyright Act of 1976 states that “Copyright protection subsists…in original works of authorship fixed in any tangible medium of expression…from which they can be perceived, reproduced, or otherwise communicated…” It goes on to list works of authorship that can be copyrighted, including, “pictorial, graphic, and sculptural works.” A tattoo artist would have to prove three elements for his or her work to be copyrighted – that the tattoo is a “work” under the Act, the work is “original,” and that it is “fixed in any tangible medium of expression.”
To prove that the tattoo is a “work” seems easy enough. It’s pictorial or graphic, similar to a painting or drawing. The real debate comes in the second and third elements – fixation and originality.
The definition of “fixation” under the Copyright Act is when a work’s embodiment is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. One could argue that a tattoo on a person’s face or other body part is stable and clearly (in some cases, regrettably) permanent. Or at least as permanent as many other works of art. The argument that the too too solid flesh will melt (Shakespeare’s works are out of copyright, and I’ll paraphrase all I want, thank you) – that flesh isn’t a “permanent” medium – doesn’t seem very strong. Flesh can be preserved after death, and paper, along with many other copyrightable forms of media, are often far from permanent.
As for “originality,” a tattoo will be considered original for the purposes of the Copyright Act when the creator establishes that she independently created it and that it possesses a minimal degree of creativity. In The Hangover Part II case, Warner Brothers may have tried to claim that the tattoo on Mike Tyson’s face was not original, given it bears striking similarities to Maori tattoos and design. However, the threshold for originality under copyright law is fairly low and easy to pass, however, so it is likely that Whitmill would have met this element. Rarely does a proposed copyright fail on the grounds of lack of a minimal degree of creativity.
David Nimmer, an intellectual property attorney who is well known for his continual updates to his late father’s treatise Nimmer on Copyright – the most cited treatise in court opinions on the subject of copyright law – has recently changed his position on the copyrightability of tattoos. Nimmer’s position in his treatise in 2000 was that tattoos could be copyrighted, as they are works of graphic art, regardless the medium they were designed to be affixed to.
Nimmer’s position changed at the time of The Hangover Part II controversy. He explained that copyrighting a tattoo would restrict basic human freedoms for the person with the tattoo. A person would presumably be required to keep the tattoo on his or her body once it was copyrighted, regardless of the person’s own desires. Nimmer likened this to “a badge of involuntary servitude,” like a mark that a rancher would use to brand cattle. Personal liberty to look how one wants would therefore trump the above-cited copyright law inquiries and prevents a part of the body from being subject to copyright protection.
It should be noted that Nimmer’s position on the copyrightability of tattoos changed after he was hired by Warner Brothers to advise them on this matter; the judge barred him from testifying at the hearing, and Nimmer’s actions were subject to criticism.
Whatever Nimmer’s intentions may have been, his points are worth considering. Could a copyright owner of a tattoo keep a person from appearing a movie or commercial if the tattoo would be visible? How does tattoo copyright fit with one’s right of publicity – the right to control and profit from one’s image? Is there a “license” to your body that would allow you to use it without interfering with a copyright? These are questions courts will eventually have to answer if the copyright tattoo issue is to be resolved. My sense is that by choosing to work in a medium that involves the human body, tattoo artists should understand that their works will enjoy, at best, a lesser form of copyright protection compared to artists who work on paper or canvas. However, until these issues are resolved by a court or by legislative means, the bottom line will probably come down to a variation of the Golden Rule – whoever has the gold makes the rules. Meaning, the most deep-pocketed party is the one you can bet on to win in the long run.