Tattoo artists use skin as their canvas. Who owns the copyright, the artist or the actor?
Quick background about Copyright
Legal copyright ownership belongs to a person who creates an original work of authorship fixed in a tangible medium of expression. This is well established under the United States Copyright Act.
Simply stated, if an individual uses a minimal amount of originality to create a work of art and puts that work into something tangible, such as paper, wood, concrete, a phonograph (this also includes software code and digital files), the creator has copyright ownership in their work.
The copyright owner has the exclusive right to make copies, sell, license, copy and display their work. They get to make money for their work if a market for the work exists. The copyright owner can also assign their copyright ownership to someone else.
Copyright ownership rights are a bit more complicated, but for this article, these basics provide a background.
Tattoo Artists and Copyright Ownership
What happens if an artist creates an original work of art on someone’s skin? Specifically, a tattoo? Who has copyright ownership? The easy answer is that the tattoo artist does because the artist created an original work of art fixed in a tangible medium of expression, someone’s skin. But is this the right answer — we are talking about a human body.
Not So Easy Questions – When Actors Get Tattoos
Often, when an actor gets a tattoo, the actor is trying to alter their own public image. The tattoo becomes a part of the actor. What actors are not trying to do is act as billboards or galleries for tattoo artists. A tattoo is on a body, not a wall.
Does the tattoo artist have copyright ownership in the work he created on human skin?
Or does the person with the tattoo on his skin have copyright ownership? After all, the skin not only belongs to the person, but is inherently part of the person.
Is it possible for tattoo artists to exercise rights in copyright ownership if someone else is walking around with the art permanently imprinted on their body somewhere?
Even more complicated is where an actor or sports figure obtains a tattoo in a visible part of his body. The tattoo becomes part of the actor’s public image. It may be argued that because the tattoo is part of the actor’s image, the tattoo is now identifiable with the actor and is part of the actor’s brand or trademark. Does the actor have copyright or trademark ownership in the tattoo?
Taking this scenario one step further, what about duplicate tattoos on different people? Who has the right to enforce copyright ownership if someone gets the same tattoo in the same place as someone else? Does the tattoo artist have copyright ownership rights to prevent another artist from recreating their work on someone else? If a tattoo is part of an actor’s brand, the person who copied the tattoo has now effectively diluted the original actor’s brand. Depending upon the situation, the actor with original tattoo might even have a claim against the person who copied the tattoo on another person for tarnishing the original actor’s brand.
Getting back to the original question, who has copyright ownership of the work of art that is now part of someone’s physical body? A human form that has been permanently altered forever.
Did the originators of the Copyright Act contemplate the usage of human skin as a tangible medium?
And if there are not enough problems to address, does a tattoo artist have the right to sue for copyright infringement if an actor stars in a film where the tattoo is visible and seen by millions of people? Should the tattoo artist get paid every time their tattoo is in a commercial production? Should the tattoo artist get a credit or other attribution for their work every time it is visible?
And what about the actor? Should the actor have to get a release from or pay the tattoo artist for a license to use the tattoo in commercial work, such as films, public presentations, advertisements or telecasts? Does a film studio have the right to cover up the artist’s tattoo with makeup or through digital compositing in order to remove the tattoo and avoid liability?
Whose rights dominate? The artist who created the original work of art on the actor’s skin or the actor who has a right to privacy and publicity under state and federal laws http://rightofpublicity.com/statutes/new-york? Shouldn’t the actor have the ability to do anything he or she wants to do with their body? Can a third party tell anyone what they can do with their body?
When conflicting laws are present, who wins?
Courts in the United States have yet to decide the answer to this conflict. Recent cases have settled out of court with no guidance or authority for attorneys to follow. The following news articles illustrate some of these cases.
The movie The Hangover II is sued by the artist who created Mike Tyson’s face tattoo. One of the characters in the film wakes up to find he has the same tattoo similar to that of famous boxer/actor Mike Tyson. http://abcnews.go.com/Business/hangover-tattoo-lawsuit-shines-light-copyright-laws/story?id=13669298
Another article about the Hangover II lawsuit and settlement. http://www.hollywoodreporter.com/thr-esq/warner-bros-settles-hangover-ii-203377
This article references a lawsuit where a video game company is sued for acurately depecting a basketball player with his tattoo. The artist wanted to get paid for including the tattoo on the basketball player. http://www.bloomberg.com/bw/articles/2013-09-04/hey-pro-athletes-your-tattooed-arms-are-going-to-get-you-sued
I personally think the actor has superior ownership rights in the artwork as a work made for hire. 17 U.S. Code § 201(b). A work for hire explained simply is where an employer hires an employee for a specific purpose such as creating a tattoo. In a typical work for hire agreement, the employer maintains copyright ownership, not the employee. The Copyright Act addresses the work made for hire concept directly. The originators of the Copyright Act did contemplate this type of employment arrangement related to copyright and I believe it should apply to tattoo recipients and tattoo artists.
If the work made for hire concept applies, the actor is the employer to the artist, who is the employee getting paid for work. If the work is original to the artist and the medium turns out to be the skin of someone famous, the artist could get paid significantly up front and then any use of his artwork by the actor would be free publicity.
Alternatively, I think the actor should get an implied assignment of copyright ownership or an implied license to use the art in any way the actor sees fit. The art is on the actor’s skin and it seems unimaginable that someone else would have rights that exist on someone else’s skin.
It would be too burdensome for an actor to keep track and pay the tattoo artist each time an artist’s work is used in a commercial production, advertising, etc. Having to cover up a tattoo or removing it digitally in order to minimize liability defeats the whole purpose of the actor getting a tattoo in the first place if the actor wants the tattoo for branding purposes. Also, the fact that anyone has an ownership right on someone’s skin on any level might violate the 13th Amendment to the United States Constitution, which forbids slavery. In this situation, I think personal specific privacy rights should prevail over intellectual property rights.
What do you think? Who do you believe has copyright ownership of the tattoo, the tattoo artist or the actor? Should human “skin” be included or excluded under the definition of “tangible medium” under the United States Copyright Act?
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