Whose Ink is it Anyway?
By Peter Dang
With over 45 million Americans sporting a tattoo, this form of artistic expression has become part of mainstream culture in the United States, particularly among younger generations. Studies have shown that roughly one-third of individuals ages 18 to 25 have a tattoo and about 40% of people between the ages of 26 and 40 sport some ink. The tattoo industry is a multi-billion dollar business in the United States, but recent cases have raised the question: who really owns the art on your body?
Most recently, Arizona-based tattoo artist Chris Escobedo brought a lawsuit against video game publisher THQ for using the likeness of former UFC Welterweight Champion Carlos Condit. Condit’s likeness included a distinctive lion tattoo inked by Escobedo, which was the source of Escobedo’s claims of copyright infringement.
Escobedo’s case did not mark the first time that a lawsuit was brought over a tattoo prominently displayed on a famous celebrity or athlete. In 2005, tattoo artist Matthew Reed sued Nike for featuring former NBA star Rasheed Wallace and his prominent “Egyptian Family” tattoo in promotional materials. In 2011, Victor Whitmill, the tattoo artist responsible for the tattoo on the side of Mike Tyson’s face, brought a suit against Warner Brothers for using his tattoo design in the film The Hangover II without permission. In the movie, Whitmill’s design was seemingly replicated on actor Ed Helms’ face. Unfortunately for copyright jurisprudence, the latter two cases were settled out of court. But the judge in Whitmill’s case commented that Whitmill had a “strong likelihood of prevailing on the merits for copyright infringement.”
So does copyright offer protection for tattoo artists? Technically, yes. Copyright law protects original works of authorship that subsist in different forms ranging from literary works to motion pictures. Within this spectrum, tattoos slide within the “pictorial, graphic, and sculptural works” category in the statute. As creators, tattoo artists have the right to control uses of the tattoo even if the tattoo is located on someone else’s body. The issue becomes more complicated when the “work made for hire” doctrine is factored in. That doctrine grants the rights to the work to an employer when the artist has prepared the work in his capacity as an employee within the scope of his employment. But, in the case of specially commissioned works like tattoos, the doctrine won’t apply unless there is a written agreement between the parties.
Some fear that allowing tattoos to be copyrightable would raise constitutional concerns and have the unintended effect of giving the copyright owner power over how their client acts. Copyright holders have exclusive privileges to their art, which includes the “right to display, reproduce, copy and make derivative works”. A tattoo artist could thus theoretically be allowed to limit a client from appearing in films or photographs, assuming the tattoo is displayed. This brings up a Thirteenth Amendment issue and potentially a situation of involuntary servitude.
Unfortunately, a lawsuit isn’t a practical course of action for many tattoo artists. Bringing a lawsuit can be expensive and take a lot of time. Unless the alleged infringer made hundreds of thousands of dollars, there is also the risk of chasing empty pockets. Instead of pursuing lawsuits, tattoo artists will often rely on informal enforcement methods to stop unauthorized copying. Because tattoo artists form such a tight-knit community, badmouthing can damage an artist’s reputation, particularly in this day and age when the internet can make that kind of information more visible.
Even though tattoos have become mainstream in American culture, they stand on the frontier of intellectual property law. Until the courts have an opportunity to further develop case law on the matter, tattoo artists will largely have to continue to rely on informal enforcement methods to protect their works. A prudent tattoo artist, and a prudent client, will also insist on a written agreement regarding ownership and permissible uses of the tattoo.