Tattoo artists use skin of their clients 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 person, an individual who has the right to completely control their own image. The right of publicity is a legal right to protect, as well as monetize, their own image. What happens to those rights if a tattoo artist can claim a copyright interest in someone else’s image?
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 and their public image. As mentioned above, every person has a right to publicity that is inherent in their outward appearance. Included in that outward appearance is the tattoos that may be visible to the public.
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 person have copyright or trademark ownership in the tattoo that is now part of their public image?
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? Possibly, but 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? If the tattoo is visible only briefly for a few seconds here and there and is only a tiny percentage of the overall film production, it may be too minimal to be rise to a copyright infringement claim.
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. A recent 2020 ruling out of New York has finally shed some light on this subject, in Solid Oak Sketches, LLC v. 2K Games, Inc., 449 F. Supp. 3d 333 (S.D.N.Y. 2020).
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 person who’s skin has had a tattoo imprinted, (celebrity, actor, sports figure, etc…) has superior ownership rights in the artwork as a work made for hire. 17 U.S. Code § 201(b). A work made for hire is where someone commissions another person to do some work for them for a specific purpose; in this example we have the scenario where an individual hires someone to create a tattoo on their body. 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 individuals that commission tattoo artists.
In this scenario where a work made for hire agreement exists, the individual owns the copyright of the art. This is consistent with an individuals right of privacy, where one has the right to protect and monetize their own image.
Alternatively, I think the actor could 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. In this situation where we are considering art on someone’s skin, I think personal personal privacy rights should prevail over rights of a third party.
What do you think? Who do you believe has copyright ownership of the tattoo on someone’s skin, the tattoo artist or the person? Should human “skin” be included or excluded under the definition of “tangible medium” under the United States Copyright Act? Which right trumps the other, personal privacy or copyright ownership?
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