New York Law School

Infringe That!

Copyright in Tattoos, Artist vs. Canvas

Posted on: December 20th, 2013 by Brayndi Grassi 3 Comments

You want to get a tattoo. Normally, you spend time choosing the perfect design and placement. Then you spend hours reading reviews on Google to find the perfect (read: cleanest) tattoo shop in your area and make an appointment. You arrive for the appointment and after agreeing on a design you are handed a sheet of paper that looks very official and includes a lot of words you don’t understand. However, the excitement from getting a tattoo means you sign anyway and nervously get in the chair. Up until recently, the release you signed would include the basic things about acknowledging the risk of getting a tattoo, agreeing not to hold the tattoo shop liable for any complications associated with the tattoo, and certifying you are not drunk while getting this tattoo. In the future though, the releases could include a provision that states that the artist retains all copyright interests in the design of the tattoo. This change will likely be brought about by the changes that are happening at the moment in the realm of copyright law and how it applies to tattoos.

Up until the early 2000’s no one considered tattoos a form of copyrightable material. Then in 2005 a Portland, Oregon tattoo artist sued Detroit Pistons forward Rasheed Wallace claiming he owned the copyright interest in the tattoo design and sought to stop a Nike ad featuring the tattoo from being disseminated over the internet. He also sought damages. The case settled out of court, but sparked a new kind of copyright infringement suit. More recently, the tattoo artist who created the distinctive face tattoo for Mike Tyson sued the creators of The Hangover 2 for infringing his copyrighted material when they gave Ed Helms a similar tattoo in the movie. The artist, S. Victor Whitmill sought to prevent the movie from being released and argued that the movie producers failed to get his consent to use his tattoo design on someone besides Mike Tyson in the movie. The case settled before trial, but the judge’s comments were ground-breaking. The judge stated in her comments,

“Of course tattoos can be copyrighted. I don’t think there is any reasonable dispute about that. They are not copyrighting Mr. Tyson’s face, or restricting Mr. Tyson’s use of his own face, as the defendant argues, or saying that someone who has a tattoo can’t remove the tattoo or change it, but the tattoo itself and the design itself can be copyrighted, and I think it’s entirely consistent with the copyright law.”

Her comments are the first time that a judge has opined on the copyrightability of tattoos and according to her they are entirely within the realm of copyright law. The ramifications from this are vast and potentially open up a vast number of celebrities to law suits from tattoo artists who want to benefit from the fame of the celebrity.

Most recently, tattoo artist, Christopher Escobedo, sued THQ, the creator of the video game, UFC Undisputed for copyright infringement when they included a detailed representation of fighter Carlos Condit (and his tattoos) in their game. Escobedo stated, “It’s an exact replica of my art,” says Escobedo. “That’s like a $5,000 tattoo that I got no recognition for.” This case is still up in the air, after Escobedo refused a settlement offer of $22,500 and if the case moves forward this could be the first time a court has actually had the chance to rule on a tattoo copyright infringement case. This ruling if it comes will pave the way for definitive changes in how a celebrity and even normal people go about getting a tattoo.

The National Football League Player’s Association (NFLPA) has already taken preemptive steps to prevent themselves from being held liable in future tattoo claims. They have asked players getting tattoos to get a waiver from their artist that they will not hold the NFLPA liable for any infringement. They have also suggested that players that already have tattoos try and get a waiver from their artist. This could very easily translate into the tattoo artists taking preemptive steps of their own to secure their copyright interests. Since it seems that a judge would likely rule that a tattoo design is copyrightable, it would only make sense for the artists to start including a provision in the release that states they retain an interest in the copyright. This won’t be a problem for us run of the mill citizens who don’t have million dollar endorsement deals, but for celebrities this could prove problematic. It would seem that the celebrity could either pay more money up front for the right to exploit the tattoo or they could show up to a tattoo session with their own waiver saying that either the artist transfers the copyright interest to the canvas or that the artist agrees to not unreasonably withhold consent to any future use of the tattoo in a video game, ad campaign, magazine cover etc.

It will be interesting to see if the Escobedo or any future cases actually get before a judge, but either way a new precedent has been set by the tattoo artists who have chosen to stick up for their copyrighted material.

3 Responses

  1. [...] Copyright in Tattoos, Artist vs. Canvas – Infringe That! [...]

  2. z! says:

    Unless the tattoo was copied from a book (“flash” art), it very well may be an original work created for the wearer. OTOH, many original tattoos are created at the direction of and probably include creative elements from the customer (mine do). It’s not a stretch to consider them a “work for hire” if that’s part of the waiver/agreement, which bops it back to the wearer.

  3. BS Simon says:

    I can agree with the judge saying a Tattoo’s design is covered by copyright. However, once the tattoo has been applied to a person an argument could be made that an image of that person (or a video game avatar based on that person) featuring the tattoo would be a transformative use of the tattoo.

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