This week’s post is an excerpt from Copyright for Creatives, available at Amazon. 

TATTOOS

The question of tattoos and copyright is a little murky. There have been no federal court decisions one way or the other (although Whitmill comes close, as we’ll see shortly). Technically, tattoos seem to fall neatly under the basic definition of copyright protection in 17 USC§ 102: 

“Copyright protection subsists… in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated,

either directly or with the aid of a machine or device.”¹¹⁸  

A tattoo can certainly be perceived (seen). On the other hand, much like the challenge faced by Chapman Kelley in Kelley v. Chicago Park District, it’s conceivable that a question could be raised about whether human flesh (the cells of which continually slough off and are replaced) is not “fixed” much like plants in a garden.¹¹⁹

The main question with tattoos, though, is whether or not a tattoo is an “original work of authorship” under the statute once it’s on someone’s skin. That is, who “owns” the tattoo: the person whose skin it’s on, or the person who created the design? The design of the tattoo—the artwork on paper—is certainly copyrightable, as long as it meets the statute’s criteria for originality, isn’t derivative or infringing on an existing design, and meets the Copyright Office’s expectations for complexity and uniqueness.

The basic rule, though, appears to be that the tattoo artist owns the copyright to the design, regardless of whose skin the tattoo is on. If someone sees a tattoo on someone, takes a picture of it, and asks another artist to reproduce it, the original artist’s copyright is being violated. Of course, the First Sale Doctrine allows the tattooed person to have the tattoo modified or covered or removed entirely. But they have no rights to the underlying design; that belongs to the artist.

The closest we’ve gotten to a resolution of the tattoo/copyright question is a case involving the 2011 movie, The Hangover Part II.* In the movie, a character wakes up after a night of drunken partying in Bangkok to find a tribal tattoo around his left eye, his skin still painfully pink. The tattoo is identical to Mike Tyson’s (a reference to the boxer’s cameo in the original 2009 movie).

Tyson’s tattoo artist, S. Victor Whitmill, filed a lawsuit against Warner Bros. Entertainment just weeks before the movie’s premier. Since he held a copyright for the eight-year-old artwork, he claimed that the use of his design in the movie and in advertisements without his consent was copyright infringement and sought an injunction against the movie’s release. Warner Bros. argued that it was an acceptable use.

The judge noted that the facts were uncontested:

• Whitmill created the tattoo on Tyson’s face, and Tyson signed a release of all ownership in the design to Whitmill. Whitmill was the copyright owner.
• Neither Tyson nor Warner Bros. sought permission from Whitmill to use the tattoo, either in Hangover I or II.
• Hangover I showed only Tyson’s face and did not use the tattoo apart from his face. Hangover II was a non-Tyson use of the tattoo, using the tattoo on another character’s face in a majority of the scenes in the movie. However, the tattoo is insignificant to the plot line.
• Warner Bros. has spent millions promoting the film and its scheduled opening.

The judge also made the following legal observations:

• Whitmill’s likelihood of prevailing was “strong” and Warner Bros’ arguments were “silly.”
• Warner Bros’ use of the tattoo was unauthorized. The tattoo as a plot device could have been replaced with any other tattoo. The copy was exact.

The judge then proceeded to decide the case in favor of Warner Bros.

Wait, what?

Balancing the equities (that is, thinking about who should win in fairness v. who would win under law) the judge described the harm to Warner Bros as “very large” and Whitmill’s harm comparatively small:

• Warner Brothers would lose millions of dollars if the movie was delayed for trial;
• Whitmill was losing control of his art, but Warner Bros would potentially lose a lot of money;
• It was only one tattoo design, without significant effect on the Whitmill’s business;
• The “public interest” in seeing The Hangover II was strong. If the movie was not released, theatre owners and distributors would lose a lot of money, too. 

So unfortunately, in one of the few tattoo cases we have, profit won over an artist’s rights. On the other hand, the case never went to trial, where the copyright question would have probably been resolved in Whitmill’s favor, because the parties reached an out of court settlement on their own.

NOTES

118. 17 USC § 102

119. It should be noted, though, that it is the epidermis—the top layer of skin—that is continually replacing itself; tattoo ink is generally applied to the dermis, the layer of skin beneath the epidermis, which organically replaces itself much more slowly.

*Whitmill v. Warner Bros. Entertainment Inc., 4:11-cv-00752 (E.D. Mo., 2011)