Nowadays, it seems like everyone has tattoos: from sports stars to tweenagers, more and more people are getting inked in a very recognizable way (take Rihanna or Colin Kaepernick, for example, whose tattoos are very visible and very unique).
But just who owns these tattoos? You may immediately (and understandably) say the person with the tattoo, right? It turns out, thanks to copyright law, that this may not actually be the case. And in light of recent lawsuits (think: the Hangover 2) stemming from the use of tattoos, it seems this could become more of an issue in the near future.
There seems to be no debate that tattoos are copyrightable in and of themselves; they satisfy the fixation and originality requirements imposed by the Copyright Act, which requires that the work be fixed for more than a transitory period of time and that the creator of the work displayed some creativity (a “modicum” will suffice). The problem that can emerge results from the medium on which the work is placed: human skin. One of the main reasons people get tattoos is to display them prominently to the world as an expression of their personality, interests, etc. However, under copyright law, the displaying of a work is something that is reserved exclusively for the author of the work. And tattoo artists have recently been staking a claim in their work, seeking copyright protection for their creations.
This seems really awkward though, right? The work is inherently tied to someone’s body, and it seems absurd to think that someone would not own their body in its entirety. So what gives?
It turns out that the issue is (not surprisingly) unresolved at this point in time. In fact, it has only been recently that lawsuits have been springing up, but almost all of these lawsuits have been settled out of court, resulting in a lack of case law. Cases have seen a variety of arguments: spanning from work made for hire, to the Visual Artists Rights Act, to an implied license.
Under copyright law, the general rule is that ownership of a work belongs to the author of the work; however, exceptions to this rule exist, namely in the form of works made for hire and implied licenses.
Works made for hire constitute a narrow carve out, and allow someone other than the person who created the work to be considered the author of the work. The situations where this occurs are laid out in 17 USC §101, and apply where a work is (1) prepared by an employee within the scope of his or her employment; or (2) specially ordered or commissioned for use as a contribution to a collective work, as part of a motion picture or other type of audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as an answer for a test, or as an atlas (a written agreement is also necessary for this second category).
Both tattoo artists and those obtaining tattoos (namely, NFL players) have been placing clauses in contracts with regards to ownership of the inked works. But without contract law and the parties agreeing over the issue of ownership, it seems the tattoos would not qualify as a work made for hire: there is no employer-employee relationship between the tattoo artist and the recipient, and the tattoo would not fit into any of the categories outlined by 17 USC §101.
This leads us to implied licenses. Implied licenses are based on party conduct, and can exist in situations where the parties do not create an actual, physical agreement, but instead display that a license was intended. An implied license “allow[s] the licensee (the party who licenses the work from the copyright owner) some right to use the copyrighted work, but only to the extent that the copyright owner would have allowed had the parties negotiated an agreement”; most commonly, customs and practices of a respective community (be it physical location, occupation group, etc.) are used to gauge whether a license should be implied. Implied licenses cannot be exclusive (per §204 of the Copyright Act, which requires exclusive transfers be in writing).
With tattoos, where there is an absence of an agreement specifically outlining the copyright rights of the parties (i.e. the tattoo artist and the recipient of the tattoo), it seems reasonable to assume there is an implied license. Indeed, “[s]ome courts have recognized that an implied license results when (1) the purported licensee requests the creation of the work, (2) the copyright owner creates the work and delivers it to the licensee, and (3) the copyright owner intends the licensee to use the work as the licensee does.” A tattoo seems to fit all of these elements; as such, it would not be surprising for courts to find a tattoo grants a non-exclusive, implied license.
To find the opposite would frustrate the purpose of someone getting a visible tattoo (of which the tattoo artist would obviously be aware while they were creating the work), and would also impede a person’s freedom of their body (specifically, to display the tattoo that is on their skin and that they paid money for). However, an argument can (and has) been made that when using a tattoo for a purely commercial purpose (as was the issue with boxer, Carlos Condit’s, tattoo being used prominently in a video game) a license should not be implied. As for whether or not courts would agree with this notion, only time will tell.
What would be more likely, however, is to see more tattoo parlors including an ownership provision into their contracts, and on the flip side, seeing more celebrities (most notably, sports stars), obtaining copyright waivers to avoid headaches in the future.
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Rik Lee is an Illustrator who grew up in Melbourne, Australia. He currently lives and draws in Bali, Indonesia. Rik has illustrated for a diverse range of clients, including big international brands, advertising agencies, small independent companies and the kid next-door who wants a new tattoo. His client list includes, American Express, Virgin Australia, Ray Ban UK, Air New Zealand, Undiz, Stussy, Honour Over Glory, Nylon, Vice and Vibe.
Rik is plans to open RAD TOWN, a studio/shop in Bali. He is launching a new clothing and lifestyle brand called Bangs. To learn more about Rik Lee go to http://www.riklee.bigcartel.com/.