Copyrights & Tattoos
By Justin M. Jacobson & Jeffrey E. Jacobson
Recent cases involving boxer Mike Tyson’s tribal tattoo displayed on an actor in the motion picture, The Hangover 2 as well as the increased usage in video-games of NFL, NBA and WWE “real life” characters, including reproducing identifiable tattoos that these athletes possess, has brought the issues of copyright in a tattoo to the forefront. In fact, there has been a series of lawsuits focused on ownership and third-party usage of a tattoo, including one from a tattoo artist responsible for creating the artwork on a UFC fighter which was then replicated and displayed in a UFC video game. There was also a case from a tattoo artist against the developers of the NBA 2K video game for the usage of a variety of NBA players’ tattoo artwork on the in-game players.
One of the central questions posed by these lawsuits is whether the tattoo created on the individual is protected by U.S. Copyright Law. Generally, according to 17 U.S.C. § 102, copyright protection exists “in original works of authorship fixed in any tangible medium of expression [… ] from which they can be perceived, reproduced, or otherwise communicated.” This provides protection for any “original work of authorship” that can be perceived. This means that since the image (tattoo) can be seen on the individual’s exposed skin as well as reproduced in photographs and digitally in a video game, copyright protection applies to the finished tattoo. This is especially true since many tattoo artists are working with their own original designs. Consequently, these creators’ works (finished tattoos) are protected by copyright law; and, the owner of the copyright possesses the exclusive rights provided under 17 U.S.C. § 106. These rights are provided to the artwork’s creator, not the individual that the artwork is displayed on, which means that the owner (tattoo artist) has the right to make copies of the work (tattoo), distribute the work, display the work, and make derivatives of the work. In this instance, a “derivative” work could include displaying and reproducing the image in an audio-visual work, such as in a video-game or in a motion picture (17 U.S.C. § 106(1)-(6)).
Since the creator of the work is usually deemed its exclusive owner, it is generally prudent and advisable for an individual purchasing a tattoo to enter into some sort of license or full assignment with the tattoo artist for the rights that they possess in the work. This document should either fully assign any and all rights in the tattoo to the purchaser; or, at a minimum, provide the purchaser with a license that grants them the right to reproduce or otherwise utilize the tattoo for their own purposes, including for both commercial and promotional ones. Failure by the individual to obtain such documentation from the artist could cause the individual to be liable for copyright infringement if they later reproduce or make any derivatives or other uses of the work without the proper authorization or permission of the owner. When the individual is an actor or athlete this becomes a real issue. Additionally, many film and television production companies will generally not permit a tattooed actor to perform without initially investigating this fact.
While it may seem odd for an individual purchasing a tattoo to also provide the artist with a release or other assignment of rights in the work; however, with the increase in litigation and the additional mediums that original tattoos are being reproduced in, it is prudent and is becoming the norm among influencers and talent alike.
This article is not intended as legal advice, as an attorney specializing in the field should be consulted.
(c) 2019 The Jacobson Firm, P.C.