Can You Copyright a Tattoo?

The Volokh Conspiracy’s David Post examines a new lawsuit filed by tattoo artist Victor Whitmill against Warner Bros. studios, alleging that the company violated his copyright by featuring a facial tattoo in the new movie The Hangover 2 that looks identical to the tattoo Whitmill designed for boxer Mike Tyson. Does he have a case? Here’s Post:

To answer that, we need to figure out if tattoos can be protected by copyright at all — a question no court (until now), to my knowledge, has ever confronted. The Copyright Act sets out the requirements for copyright protection: you have to have an “original work of authorship,” and it must be “fixed in a tangible medium of expression.” There’s not much question that Whitmill’s design is an “original work of authorship” — if it were painted on canvas, for instance, there’s no doubt that it would receive copyright protection. The harder question is whether Mike Tyson’s face is a “tangible medium of expression.”

The statute says that a work is “fixed in a tangible medium of expression” when its embodiment in a material object is “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” By my reckoning, the tattoo here clearly fits the bill: once it’s on Tyson’s face, it can be perceived by others for more than a “transitory duration.”

Read the rest of Post’s analysis right here. For a skeptical take on copyright laws, see Jesse Walker’s classic feature "Copy Catfight: How intellectual property laws stifle popular culture." For a quick overview of the movement to legalize tattooing in modern America, see here.

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  • Art-P.O.G.||

    Satire?

  • kinnath||

    My very first thought.

  • ||

    Indeed. Not only is it a gag in a comedy, it's a comedy in which Mike Tyson appears.

  • kinnath||

    Tyson is in both movies correct?

  • ||

    Yes.

  • OO||

    i bet a dollar to a doughnut hole that tyson's tat is based on polynesian design & is therefore NOT original art

  • kiwi dave||

  • Gray Ghost||

    Originality is not necessary to secure a copyright in a design or logo. "Sufficient authorship" is. As for what is sufficient authorship, the D.C. Court of Appeals went into some explanation of what is required in Atari. v. Oman, 888 F.2d 878. http://law.justia.com/cases/fe.....78/203791/ (A Ruth Ginsburg case before she became SCOTUS Justice Ginsburg.) If Whitmill just copied a Polynesian design directly, then I don't think his tattoo would constitute sufficient authorship, but if he modified the design, then he might.

    Not having yet read the briefs, I'm not sure how Whitmill is going to get past the registration requirement or the deposit requirement in order to prevail in his suit.

    An law article, that I haven't had time to read yet, on the law of copyrights and tattoos may be found here: http://www.brinkshofer.com/files/190.pdf

  • Evander Holyfield||

    If any troll tries to co-opt the half ear look my lawyers will be dispatched ASAP.

  • Mike Tyson||

    Hey, I created that design!

  • Vincent van Gogh||

    *Ahem*

  • ||

    Zombie alert! Not only half dead, but half deaf.

  • ||

    By my reckoning, a human life is a fleeting event of transitory duration. Even without dying, is it technically still "sufficiently permanent" once his face starts getting wrinkles?

  • Really?||

    No reasonable person thinks that 70 years is a fleeting event of transitory duration. Sorry.

  • Jim||

    Paleontologists?

  • Really?||

    I stand corrected.

  • Joe M||

    So does that mean it could be copied after Tyson dies?

  • Some Call Me. . .Tim||

    It was unneccessary to regulate tattoos when only regular people had them. As usual celebrities and money have ruined something we used to take for granted.

  • Matrix||

    So, does that mean that all these companies whose characters and logos are tattooed onto people, without their permission, get to sue the owner and tattoo artist?

  • Mo||

    If the use of the tattoo is to make money, like this movie, then they would theoretically be able to sue you for a trademark infringement.

    http://www.straightdope.com/co.....teams-logo

  • Neu Mejican||

    Main issues:

    1) Fair use for pardoy - the artist has no case whatsoever.

    2) If the design is a faithful rendering of a traditional Moari design, he has no case. If it is inspired by Maori designs, he would have a case, without the issue of parody raised above.

    3) I would suspect that copyright is really held by Tyson, transferred to him upon purchase.

  • Otto||

    3) is a good point. Works for hire are usually either not copyrightable, or the copyright belongs to the person / company who paid for the work.

  • Mo||

    #3 isn't necessarily true. Considering that often you don't even retain the rights to pictures that you pay for in a photo studio (like in Sears). I'm guessing the contract spells out who owns the rights to the image and this guy sounds like he'd have a contract in place where he would own them.

  • Neu Mejican||

    Mo,

    Possible. If it is not explicitly laid out in the contract, however, I would think there would be an assumption that Tyson owns it.

  • Gray Ghost||

    Why would Tyson own it? Tyson isn't the author of the work, (presumably.) Now if Tyson went to the Whitmill with a design and told Whitmill to put that on his face, that's different. But usually, you need an explicit contract or other document to substantiate a work-for-hire's assignment of rights away from the author. Otherwise, the copyright bundle of sticks are the property of the author's.

  • Mo||

    I believe the default assumption in the US is that the creator owns it unless it's specifically laid out contract. For example, for my wedding pictures, we had to get it in writing in the contract that we owned the pictures. Otherwise, if you take the CD to Target or CVS, they won't print it for you.

  • Neu Mejican||

    I am just an artist, so I'll defer to you more lawyerly types about where the default assumption is in this case, but copyright law is typically pretty common sense when it comes right down to it. The artist would have to be able to get over some pretty big obstacles to claim that this was an unauthorized copy of his work. In the end I don't think he could make a legitimate claim unless he was suing another tattoo artist. That is not the case here. The work is transformative, in a different medium, a parody, doesn't hurt, but probably helps his ability to market the design, etc... Really, he's got no case.

  • Neu Mejican||

    I believe the default assumption in the US is that the creator owns it unless it's specifically laid out contract.

    Reading this over, I think a tattoo is a slam dunk for "work for hire" and the tattoo artist has not copyright. The "complete work of art" is the person, the tattoo is part of the whole, but control of the display and use is in the hands of the person commissioning the work.

    http://www.copyright.gov/circs/circ09.pdf

  • Gray Ghost||

    I disagree. From your cite, we look to the relationship between the creator of the work---Whitmill---and the entity on whose behalf the work is made---Tyson. The work, in this case, is the tattoo design, fixed by tattooing the design with permanent ink into the flesh of Tyson. The rest of Tyson's body is irrelevant.

    (Aside, a lot of this is going to be fact-dependent. Did Whitmill have the design already written down upon a template somewhere? If so, then that work is fixed in a medium wholly separate from the tattoo on Tyson. Who came up with the design? How did they come up with the design? Did Tyson help out with creating the design? Was that help sufficient to make the work a collaborative work with joint authorship rights vesting in Tyson? What did the contract say between Tyson and Whitmill, if indeed there was any contract at all?)

    O.K, we have the work. We'll assume that Tyson didn't help out at all, that he just walked into the tattoo parlor and told Whitmill to tattoo him with something tribal. Then we have to ask whether Whitmill was Tyson's employee, using the CCNV v. Reid factors mentioned in your link. Again, whether Tyson had "control" over Whitmill or over the work is going to be heavily fact dependent. From glancing over the facts in the HnR post or at Volokh, I don't see where you can say that Tyson had "control". And Tyson doesn't have the status of employer, IMO. For one thing, Tyson isn't in the business of tattooing people.

    So, not an employee. Try prong #2 of the work-for-hire analysis. Problem is, a tattoo doesn't fit any of the statutorily mentioned categories of works. And I don't think there's a contract explicitly stating that the tattoo is a work made for hire. So I don't think you can call the tattoo a work for hire, and therefore authorship rights still vest in the creator, Whitmill.

    Moral of the story if you're an artist: Like Mo's examples of photographers, get in writing, an understanding of everyone's rights in the creative work.

    Crap, this was long. Sorry.

  • Neu Mejican||

    I disagree.

    Ok. Like I said, not a lawyer, but I don't think you make a strong case.

    From your cite, we look to the relationship between the creator of the work---Whitmill---and the entity on whose behalf the work is made---Tyson. The work, in this case, is the tattoo design, fixed by tattooing the design with permanent ink into the flesh of Tyson. The rest of Tyson's body is irrelevant.

    I disagree. They are creating an illustrated man. Without Tyson as a whole, the work doesn't exist.

    (Aside, a lot of this is going to be fact-dependent....Was that help sufficient to make the work a collaborative work with joint authorship rights vesting in Tyson? What did the contract say between Tyson and Whitmill, if indeed there was any contract at all?) O.K, we have the work. We'll assume that Tyson didn't help out at all, that he just walked into the tattoo parlor and told Whitmill to tattoo him with something tribal.

    All relevant, up to a point, but in the end Tyson decided he wanted to be a work of art and hired someone to help him complete a part of the piece. He had to have collaborated on where the tattoo would be placed and the nature of that tattoo..even if he chose an existing design.

    Then we have to ask whether Whitmill was Tyson's employee, using the CCNV v. Reid factors mentioned in your link. Again, whether Tyson had "control" over Whitmill or over the work is going to be heavily fact dependent. From glancing over the facts in the HnR post or at Volokh, I don't see where you can say that Tyson had "control".

    Sure he did. He had control over when and where the work was done. It couldn't be done without him. He funded it, scheduled it, etc...

    And Tyson doesn't have the status of employer, IMO. For one thing, Tyson isn't in the business of tattooing people. So, not an employee.

    I disagree...Movie directors who hire set designers are not in the business of designing sets, nor are book publishers who hire illustrators in the business of illustrating books. ETC>>> Tyson is in the business of being a tattooed man and hired someone to help him complete that work.

    Try prong #2 of the work-for-hire analysis. Problem is, a tattoo doesn't fit any of the statutorily mentioned categories of works.

    I think it does easily. To wit, it is "a work prepared for a publication as a secondary adjunct to a work by another author for the purpose of ... illustrating..."

    And I don't think there's a contract explicitly stating that the tattoo is a work made for hire.

    This matters of course, it the contract says that the tattoo artists retains copyright. An individual would be have to be stupid to sign over copyright of their tattoo to the person they hired to complete the work, but Tyson might have done that.

    So I don't think you can call the tattoo a work for hire, and therefore authorship rights still vest in the creator, Whitmill.

    If there isn't a contract stating that it is not a work for hire, I think it fits the definitions by default. He hired someone to help him complete a part of work of art that he controlled. That person was his employee for the duration of the time that work was being done.

    Moral of the story if you're an artist: Like Mo's examples of photographers, get in writing, an understanding of everyone's rights in the creative work.

    Sure. But artists who over-reach in their copyright claims, like this guy is attempting to do, make it harder for artist to exercise legitimate copyright claims.

    Crap, this was long. Sorry.

  • Neu Mejican||

    FWIW, the article you link to above, seems to agree with your reading of it...but as an artist their interpretation still feels like an overreach. Regardless of that, however, the only legitimate claims that the artist in this case should be able to make would be against other tattoo artists. In the case of a fictional character in a movie having a tattoo similar to a famous person whom that fictional character met in a previous movie...sorry, not a legit claim. No way. No how.

  • Neu Mejican||

    For an example of how a tattoo is part of a complete work...read this.

    http://swellco2000.com/2011/05.....s-it-mean/

    I think this conveys the dominant view among the tattooed.

  • ||

    Example #23,432,981 demonstrating copyright = oppression.

  • Jim||

    ^^ Bingo. Gov't fiat monopolies are rarely good for people.

  • -||

    Does your house also have a "fiat monopoly" or can anyone stay there? How about your car? Can I have the keys? Property is property.

  • Abdul||

    I was beating my wife, raping chicks, racing pigeons, and shitting away a perfectly good career years ago. Can I sue Tyson for infringing on my trademarked lifestyle?

  • Jeff P||

    Only after he is sued by every professional athlete ever...

  • Brooding Omnipresence||

    Quick, guys, do the parody analysis! You don't get to wave your hands and speak the magic hocus-pocus word "parody"! Do some actual legal analysis.

    aaaaaaaaaaaaaand...go!

  • Neu Mejican||

    Quick, guys, do the parody analysis!

    Are you suggesting that the movie is something other than parody? This is such a clear case of fair use for parody it should be thrown out as soon as it is reviewed. You think the makers of Scary Movie need to make a case for the use of the "Scream" mask?

    It is the one making the copyright claim here that needs to make the case, not the other way around.

  • Rock Action ||

    Troll (or prick) wants the four fair use factors and the parody analysis that would follow therefrom. Well, troll, look up Campbell vs. Acuff-Rose. And then go bang your head against some bricks. Thanks.

    BTW, high A, top tier law school, Music Law, Cali award. Fuck off.

  • Rock Action ||

    Whoops. Did not mean to send that last line...well, there you have it.

  • ||

    You can probably copyright a tattoo...

    Now copyrighting it after someone pays you to put it into their skin....

    Not so much.

  • IceTrey||

    That's what I thought. Since Tyson commissioned the work wouldn't the copyright belong to him?

  • Mo||

    Nope. With commissioned photographs the photographer usually owns the rights unless otherwise specified in the agreement.

  • Neu Mejican||

    Mo,

    This depends on the nature of the photo and the commission. If the person commissioning the work is also a collaborator on the project, the default would be for shared copyright. With Tyson's tat, I am sure he and the artist collaborated on its final form. In which case, he is as much a creator as the artist.

  • -||

    Contracts and licensing also come into play.

  • Neu Mejican||

    See the pdf link above. I think you could copyright a tattoo, but only if it was on your own body. If I hire someone to give me a tattoo, the copyright comes with this work for hire as I control the use and display of the work, inherently.

  • Captain Obvious||

    If I'm going to have douchey art tattooed on my face I should have the right to not be copied by imposters.

  • Warty||

    More importantly, who's the idiot who thought that they needed to make a sequel to The Hangover?

  • Zeb||

    I would guess someone who made a bunch of money on the original.

  • Dave||

    " The statute says that a work is “fixed in a tangible medium of expression” when its embodiment in a material object is “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” By my reckoning, the tattoo here clearly fits the bill: once it’s on Tyson’s face, it can be perceived by others for more than a “transitory duration.” "

    OK, sure. And as soon as the tattoo is translated onto a sufficiently different medium (Ed Helms' face) it is a tranformative work, subject to its own copyright. With tattoos, the wearer is as much a part of the design as the 2D image.

  • Jerry||

    Hate to be this guy if Whitmill wins: Tattoo Artist Shows Body of Work With Disney Characters.

  • juris imprudent||

    I'm sorry, but I don't see the (c) symbol anywhere on Tyson's mug.

  • Neu Mejican||

    It is not required for copyright of course, but his left eye serves that purpose. ;^)

  • ||

    So this means that Tyson, not being the copyright owner, may not sell autographed photos of himself?

    If he appears in those two movies for pay, who gets sued, him or the movie owners? And if the movie never makes a profit, because we all know every Hollywood movie loses money, is it ok for them but not Tyson?

  • cynical||

    So, copyright also gives you initial property rights over the physical manifestation of the intangible intellectual property until the right of first sale kicks in, right? So, is Whitmill alleging that Mike Tyson is his property?

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