The Ink Won’t Run, and Neither Will the Copyright: Copyright Protection of Tattoos

(c) 2013.  Shanen R. Prout.  All rights reserved.

In property law there are many rights that “run” with the property, which is to say that whoever possesses or owns the property holds those rights.  As the property changes hands, these rights “run” from the seller to the buyer.  In copyright law, however, this principal generally does not apply.  Mere possession or ownership of a copyrighted work does not by itself confer copyrights to the work.  In the situation at issue in this article, the purchase of a tattoo, without additional contractual protections, does not necessarily grant any rights other than the right to have the tattoo affixed to a body part.

An example of this problem arose last year when a tattoo artist sued video game maker Electronic Arts and former Miami Dolphins running back Ricky Williams over tattoo artwork the artist placed on Williams’s arm.  The artwork appeared on the cover of EA’s “NFL Street” video game and the artist alleged that the reproduction and display of the tattoo violated his copyright.  A federal court dismissed that case without prejudice.  But, because many NFL players have tattoos, the case worried the NFL Players Association and it began advising its athletes to get releases of copyright infringement claims from their tattoo artists.

1.  What Is a Copyright?

Copyright is legal protection provided by United States federal law to certain “works of authorship.”  Protected works of authorship include “pictorial” and “graphic” works.  Copyright law generally gives the owner of the copyright the exclusive right to do, and to authorize (“license”) others to do, the following:

• reproduce the work in copies;
• create derivative works based upon the work;
• distribute copies of the work to the public by sale or other transfer of ownership, or by rental or lease;
• perform the work publicly, in the case of audiovisual works, such as films; and
• display the work publicly.

“Copies” of a work are those material objects from which a work can be visually perceived either directly or on a machine or device, such as on paper, film, video game, or digitally on the Internet.

The exclusive right to publicly display a copyrighted work means that, barring an agreement to the contrary,  a tattoo artist can sell his or her artwork to a customer, and the customer will own the actual ink in his or her body.  But, the customer will own nothing else.  Only the artist may publicly display the tattoo.  Public display of a tattoo would occur when, for example, a celebrity appeared in a commercial showing the tattoo, appeared in magazine shoots with the tattoo, or displayed the tattoo in a video game rendering of the celebrity.

2.  Copyright Protection for Tattoos

A tattoo will obtain copyright if it is a minimally creative “original work of authorship” that is “fixed in a tangible medium of expression” that can be viewed and the work exists for more than a “transitory duration.”  Though the exact question has not yet been decided by an appellate court, copyright protection likely extends to tattoo artwork.

3.  What Is Not Protected by a Copyright?

The following are not entitled to copyright protection:

• ideas, concepts, discoveries, principles;
• formulas, processes, systems, methods, procedures or facts;
• words or short phrases, such as names, titles, and slogans;
• familiar symbols or designs; and
• mere variations of typographic ornamentation, lettering, or coloring.

Depending on the tattoo artwork at issue, some or all of it may not be entitled to copyright protection.  Examples of potentially uncopyrightable tattoos may include basic geometric designs (squares, lines, triangles, diamonds), symbols (hearts, peace signs), band names, and book, song or movie titles.

4.  When Does a Tattoo Artist Obtain a Copyright?

Many people misunderstand how copyright protection is acquired.  No publication, registration or other action with the United States Copyright Office is required to create a copyright.  Copyright is secured automatically when an artist “creates” the work.  An artist creates a work when it is “fixed in a tangible medium of expression” for the first time.  Injecting ink into a person’s body to create a permanent tattoo will constitute fixing a graphic or pictorial work in a tangible medium of expression for more than “transitory duration.”  Thus, a copyright in a tattoo is created when placing ink on skin.  If a tattoo is prepared over a period of time (for example, several days), then the part of the tattoo that is created on a particular date constitutes the copyrighted work as of that date.

5.  Who Owns the Tattoo Design?

A general rule of copyright law is that the person who creates an artwork is the owner of the copyright in the work.  However, the “work made for hire” doctrine is an important exception to this rule.  In a work made for hire situation, one party employs or contracts for the services of the artist, and the artist creates an artwork as part of the employment or contractor arrangement.  The “work for hire” designation only applies to a few circumstances, when the work in question is (1) prepared by an employee within the scope of his or her employment; or (2) specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas.

If a work is “made for hire,” the employer or party commissioning creation of the artwork—not the employee or artist—is considered the legal author and therefore the lawful owner of the copyright at all times.  And, unless agreed to otherwise in writing, the person hiring or commissioning the artist does not have to give him or her credit for their work.

Because ownership of the copyright in the artwork is on the line, it is important for artists and their customers to understand if the artist is creating a work made for hire.  In the case of tattoos, a customer usually appears in a studio to receive the design on an ad hoc basis.  Thus, normally the tattoo artist will own all copyright in the tattoo.  But, if a customer employs the services of a tattoo artist on a regular basis, say to provide tattoos to several of the customer’s friends or contacts, then there may be an employment situation and the work made for hire doctrine may apply.

6.  Legal Issues for Tattoo Artists

There are at least two notable legal concerns for a tattoo artist.

First is the matter of timing with respect to registration of a copyright.  While it is not necessary to register a copyright to create one, registration with the U.S. Copyright Offices does provide valuable rights.  A registered copyright is required before an artist can bring a lawsuit for infringement.  Further, in a copyright infringement lawsuit, to be eligible to receive an award of statutory damages and attorney’s fees, the artist must register the design with the U.S. Copyright Office (1) before the artist learns of any infringement of his or her tattoo, and (2) no more than 90 days after the artist publishes the tattoo.

A tattoo is “published” when copies of it are distributed to the public by sale or other transfer of ownership, or by rental or commercial license or lease.  Offering to distribute copies of a tattoo design to a group of persons for purposes of further distribution or public display is also publication.  The mere public display of a tattoo, however, does not by itself constitute publication.  For example, the artist’s non-commercial exhibition of a tattoo design at a trade show would likely not be “publication.”  Moreover, sale of the artist’s services in actually injecting the tattoo ink is not a publication of a copy of the tattoo.  But, displaying a picture of a tattoo for sale in the studio is probably a publication.

The event of publication is a very important event in copyright law.  The ability to elect an award of statutory damages and possibly recover one’s attorney’s fees spent in litigation are valuable remedies and their abandonment should be avoided if possible.  Accordingly, it may be wise for an artist to register copyrights in his or her most popular tattoos within 90 days after they are published for sale.

Second, there is the issue of whether the creation of a tattoo on a customer’s body will result in an “implied license” to the customer to publicly display the tattoo or reproduce copies of it.  An implied license is permission created by law in the absence of an actual agreement between the parties, but based on their conduct.  Courts will sometimes create irrevocable, implied non-exclusive licenses where (1) the licensee requests the creation of the work, (2) the licensor makes that particular work and delivers it to the licensee, and (3) the licensor intends that the licensee copy and distribute his work.  Consent for an implied license may take the form of permission or lack of objection.

The purpose of an implied license is to allow the licensee (the tattoo customer) some right to use the copyrighted work, but only to the extent that the copyright owner would have allowed had the parties negotiated an agreement.  For example, a professional athlete that regularly appears on television may have an implied license to publicly display any visible tattoos during televised games and public appearances reasonably foreseeable to the tattoo artist.

Generally, the custom and practice of the relevant community (e.g., the tattoo industry) is used to determine the scope of the implied license.  To this author’s knowledge there is no reported case law authority whereby a court found the existence of an implied license in the tattoo context.  However, implied licenses have been found in situations where a copyrighted work was created by one party at the request of another.  This legal issue may get resolved someday, but in the meantime, the law is uncertain whether a court would find that an implied license exists.

7.  A Contractual Solution to Avoid Infringement Liability

To avoid copyright infringement liability if the tattoo customer publicly displays “copies” of his or her tattoos, the customer and the tattoo artist may want to sign an assignment or licensing agreement.  Such a solution would clearly set forth the rights of the artist and purchaser  so that there is no confusion down the road.  This solution will allow the parties to negotiate a fair price for the tattoo services and any subsequent commercial use of the tattoo.  And it will help ensure that no liability arises when the customer displays the tattoo in any media.

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