Wired Legal BLOG

Tattoo Artists vs. Actors – Who Owns the Copyright in a Tattoo?

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

Tattoo artists use skin as their canvas. Who owns the copyright, the artist or the actor? By Alexander Kuzovlev (Own work) [CC BY-SA 4.0 (http://creativecommons.org/licenses/by-sa/4.0)], via Wikimedia Commons
Photo credit: By Alexander Kuzovlev (Own work) [CC BY-SA 4.0 (http://creativecommons.org/licenses/by-sa/4.0)], via Wikimedia Commons
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?

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Resurrecting Andy Warhol : The Velvet Underground sues The Andy Warhol Foundation Over Use of Banana Artwork

  1. Twenty five years after his death, Andy Warhol’s legacy, The Andy Warhol Foundation for the Visual Arts (“Foundation”), is being sued by the iconic band The Velvet Underground partnership (“VU”) for trademark infringement.   http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2012cv00201/390369/1/.  The case is The Velvet Underground v. The Andy Warhol Foundation for the Visual Arts, 12-0201, U.S. District Court, Southern District of New York (Manhattan), filed on January 11, 2012.  Specifically, VU’s four claims include: (1.) there are no copyrights in the banana design and is requesting such declaratory judgment, (2.) false designation of origin of the banana by the Foundation, (3.) unfair competition by the Foundation under New York common law, and (4.) misappropriation of the alleged trademark by the Foundation. The Foundation is due to respond to VU’s complaint in federal court on or before March 5, 2012.

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“Thou Shall Not Steal”: Copyrighting the Word of God

Can you really copyright the Word of God?  Seriously.  The text of the Bible was written long before the United States Constitution wrote those famous words giving rise to the protection of intellectual property where Congress has the power … “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”  U.S. Const., Article 8.  http://www.law.cornell.edu/constitution/articlei.    Obviously the Bible was in existence before the United States Congress passed into law the Copyright Act of 1976, which states in Section 201 that one obtains copyright ownership in an original work of authorship fixed in a tangible medium.  http://www.law.cornell.edu/copyright/copyright.act.chapt1a.html#17usc102.  People often ask, “If old books are in the public domain, isn’t the Bible in the public domain?”  The answer to that question depends upon which translation you are talking about and when it was created.  Similarly, there are old religious texts that have been used by biblical scholars since…well…the beginning of time.  How can someone actually claim copyright ownership in these ancient religious texts?

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Retro Ads, Cars & Soap; Protecting What Was Once Good and Could Be Again

As you browse through your local store shelves, you may discover some old brands made new by being made old again.  So how does that work?  Doritos, Pepsi products and long time soap brands such as Tide and Bounce are bringing back the branding of their former selves.  http://multivu.prnewswire.com/mnr/pg/47792/.


Branding attempts to shape the image of a product or service.  It has to do with the way the consumer perceives the product or service.  Some see this retro marketing as nothing more than an interest in nostalgia, but I disagree.  Retro branding is another way to build again on what is already a strong brand.  In our down-turned economy since at least 2008, people are making harder choices when it comes to purchasing decisions.  By reminding consumers that a brand has been around since the last depression, the real message is the brand will be here through this economy too.  http://online.wsj.com/article/SB10001424052702304066504576343202190467300.html.  These products are also trying to convey an image of quality.  Consumers want quality which translates to value; consequently, browsing turns to buying.

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