Who Owns Your Tattoo?

Or rather, who owns the copyright?  I started thinking about this last week after a conversation with a friend.  Would a tattoo of a validly copyrighted image, like a painting, constitute copyright infringement?  Even if an exact copy, could this really be 'substantially similar'?  A derivative work?  How about tattoo artist 'copying' the work of another tattoo artist?  And in reality, would this ever really be an issue?  Apparently so, but not how I figured.  The real issue with copyrights and tattoos right now seems to be happening the other way around--tattoo artists suing thier clients for infringement.  Last February, a portland tattoo artist sued Detroit Piston Rasheed Wallace to stop a campaign Nike had planned featuring the tattoo on Wallace's left arm.  This past summer, a british tattoo artist similarly threatened to sue David Beckham to stop a campaign that would feature the angel tattoo he designed and inked on Beckham's back.  While I am all for protecting an artist's rights in his work, the tattoo issue stirs things up a bit... afterall, this your body.  Most likely, you had some sort of input in the concept, if not the actual design, behind an image you had permanently 'fixed' to your body.  And if an artist could successfully get an injunction against unlicensed publication of his work (like through celeb ad campaigns) how far would or could that extend?  Only ad campaigns?  Could Fair Use and Public Domain issues come into play?  How about work for hire?  Just one more thing you now have to think about legally before you go and do...

Comments

[JessicaThompson]

This reminds me of the case with Dennis Rodman's tattoo. http://209.73.26.186/legaldocs/business/rodman.html

I'm not sure if the case has been resolved. Rodman sued an apparel company for selling a T-shirt that displayed Rodman's tattoos. I first learned of this case in the context of the right of publicity.

[khiggins04]

I heard about that. i think that's a trademark issue. if it was copyright, though, could rodman have copyright in his tattoos? who is the 'author' there, rodman or the artist?

[anna.chau]

This is an interesting topic since that ink art is permanently a part of a person, it becomes part of a person's identity. I mean, Rodman would not have such a bad boy image and identity if it weren't for his many tattoos (& piercings). And who is to say what you can and can't do with your image/identity? Also, could the price that clients paid for the tatoo be considered the royalty/license paid to the artist? I don't know if these cases will make it to the courts...most likely these tattoo artists just want to get the case settled and paid. If these tattoo artists had their way in the courts, I think there would be serious implications regarding using your identity as a commodity. I mean, to make an extreme example, what about cosmetic surgery?...that's also a permanent type of body transformation. So does that mean that you can never be in an ad campaign after surgery or tattooing?? That's seems to be a complete restriction of freedoms. We're all for following the laws, IP laws included, but similar to what Professor Nesson suggested (cite: Prof. Noveck in class), the IP laws should be changed to allow for freedoms to do what you want with your identity and creativity, not restrict it.

[Todd_Marcus]

Another issue this brings up is selling temporary or permenant tattoos as ads under trademark laws. This article discusses some of the implications of doing so in a commercial context (-the NBA) and the possibilities of confusion. That is the public watching an NBA game thinking that because a player has a tattoo affixed, the product might be connected with the NBA. John Vukelj, Post No Bills: Can the NBA prohibit Its Players From Wearing Tattoo Advertisements?, 15 Fordham Intell. Prop. Media & Ent. L.J. 507 (2005). Alternatively, and I think this is closer to what's been discussed, what if someone wants to tattoo a painting, or something already copyrighted by another. I'm curious about whether there could be a difference, in this context at least, between a temporary and permanant tattoo. Should the rights of a person who chooses to permenantly mark themselves be greater than those who only do it temporarily. Can tattoos be considered collaborative pieces, as the "canvas" is the skin of another person. Certainly their skin tone & shape has impact on the final product. The person getting the tattoo often has at least minimal input as to the design. Could this fit into a work for hire exception with the tattoo owner having vested rights rather than the artist in certain instances? I suppose that would be based from how the artist was hired. But this reminds me of the Hegelian notion of the creator, having rights in the work because the work extension of the creator's identity, especially if the tattoo is treated as a collaborative work.
This article addresses some of these issues. Thomas F. Cotter & Angela M. Mirabole, Written on the Body: Intellectual Property Rights in Tattoos, Make-up and Other Body-Art, 10 UCLA Ent. L. Rev. 97 (2003).

[khiggins04]

Thanks for posting those articles! I am totally stuck on this issue right now. I think what these comments all illustrate is how complex this is and could get--the multiple areas of law possible involved, multiple parties and dispute over authorship, personal freedom issues, all intimately and permanently bound up in people's bodies. In terms of temporary tatoos, know there has been some litigation centered around the production of temporary tattoos based on copyrighted or trademarked images. I think that this type of infringement comes up more because they are commercial and more widely and obviously available to the public. (See Gonzales v. Transfer Technologies, Inc., 301 F.3d 608)
I also came across a patent case regarding 'temporary tattoos' which throws another issue into the mix...

[Todd_Marcus]

just ran across another article on the tattoo front and a lawyer who is very into the issue-apparently she published a book in 2004 "Tattoo Art" but I can't find it. http://www.bmezine.com/news/guest/20031208.html

[khiggins04]

From what I gather I don't think she has finished the book yet, actually, but she does have alot of interesting columns up on that site about waivers and releases, noncompete agreements for tattoo artists/parlors and the like. Also she has an interesting story about coming across some of her partner's work in an e-book about tattoos, and the action she took to stop its dissemination. obviously the author picked the wrong guy's work to rip off. http://www.bmezine.com/news/legal/20041110.html

[Fallen Eternal Dreamer]

Okay I can understand a tattoo artist suing if he or she came up with the tattoo idea and drew it. Or drew it in that particular way but if the person with the tattoo decides to get it redrawn if they come up with the idea they should be allowed too do so. If the person who came up with the idea drew it then they have every right to sell it.That's what I think. Or they could settle with the tattoo artist and give them half of the prophets that they earn. That should be more then enough to satisfy anyone involved.