Copyright in tattoos - a prickly legal question; Lexology, June 4, 2018

Nicole Smalberger, Adams & Adams; Lexology; Copyright in tattoos - a prickly legal question

[Kip Currier: Posted this story today for my IP and "Open" Movements course. Tattoo-related copyright issues have fast become a topic of fascination--and often, surprise--for the inked and non-inked...]

"Would it ever occur to you that a third party might be able to claim rights in your skin? In the case of art that has been inked into your skin, namely tattoo art, that may well be the case.

A tattoo is an artistic work. If it is original and reduced to a material form (which it very arguably is when it is inked into your skin), copyright subsists. In the case of artistic works, it is the artist or creator of the work who owns the copyright, namely the tattoo artist and not the person on whom the tattoo appears, irrespective of the fact that the latter has paid for his/her tattoo. In short, when you pay your tattoo artist, you pay for the tattoo, not the copyright subsisting in it.

This issue has come up for legal consideration in the United States..."

New Tattoo Copyright Infringement Case Filed By Artist Who Inked WWE Wrestler Randy Orton; Forbes, April 18, 2018

Darren Heitner, Forbes; New Tattoo Copyright Infringement Case Filed By Artist Who Inked WWE Wrestler Randy Orton

"A new lawsuit will once again test the extent that Copyright Law applies when tattoos are involved. Catherine Alexander, the tattooist who inked WWE wrestler Randy Orton, has filed a lawsuit against WWE and 2K Games (the publisher of video games such as WWE 2K) for allegedly using her designs in a commercial manner and without her consent.

Alexander makes the claim that the video games featuring Orton contain exact replications, in digital design, to multiple tattoos, including a tribal tattoo that she placed on the wrestler's upper back, and that the use constitutes copyright infringement. The lawsuit, filed in the U.S. District Court for the Southern District of Illinois, indicates that Alexander even made prior efforts to come to an agreement with the WWE."

Questions Concerning Copyright Of Athlete Tattoos Has Companies Scrambling; Forbes, 8/14/13

Darren Heitner, Forbes; Questions Concerning Copyright Of Athlete Tattoos Has Companies Scrambling: "The ink issue is over who owns the copyright to the images depicted by the tattoos emblazoned on athletes’ bodies. According to sources speaking to FORBES on condition of anonymity, the issue of copyright ownership concerning tattoos on football players has very recently been labeled as a pressing issue by the NFL Players Association. One source said, “I don’t blame [the NFLPA], but they should have been on top of it earlier. It was something that was mentioned at the NFL Combine — that was the first I had ever heard them mention anything on the issue of tattoos. They advised agents to tell their players that when they get tattoos going forward they should get a release from the tattoo artist and if they can track down their former artists, they should get a release.” While it is just now garnering attention within the world of sports, copyright ownership of body ink was the subject of a contentious lawsuit between S. Victor Whitmill and Warner Bros. when the film studio placed a tattoo on the face of actor Ed Helms in “The Hangover Part 2″ that mirrored the popular tattoo Whitmill designed for the face of former undisputed heavyweight boxing champion of the world Mike Tyson. Before the case settled out of court, Whitmill alleged that he owned the copyright to the design of the face tattoo. This raised the question: does the person who receives a tattoo own the images that are tattooed on him or is the copyright owned by the tattoo artist? It is a question that has not been ruled upon by the U.S. Supreme Court... The question of whether a tattoo even warrants copyright protection is answered by Jeffrey Harrison, University of Florida Levin College of Law professor of Copyright. ”If it is copyrightable on paper, it’s similarly copyrightable on any medium that lasts, including skin,” said Harrison to FORBES."