Antoinette M. Tease Montana Patent
 Intellections® December 2014 
Body Art: Who Owns It?

According to Statistics Brain (http://www.statisticbrain.com/tattoo-statistics/), the amount of money spent on tattoos in the United States alone exceeds $1.6 billion annually. There are over 20,000 tattoo parlors in the United States, and 45 million Americans (roughly 40% of all adults) have at least one tattoo. People get tattoos for a number of reasons--rebellion, sex appeal, group affiliation, personal history--but the single most important factor in deciding whether to get a tattoo is the reputation of the tattoo artist.

Whenever art and money converge, intellectual property protection exists. This is true for movies, books, and architectural works as much as it is for tattoos. There are a number of tattoo-related patents; for example, U.S. Patent No. 6074721 covers a method of manufacturing temporary tattoos. Motorola has a pending patent application (Pub. No. 20130297301) that covers a communication system by which audio signals from the throat region are transmitted to a mobile communication device via a neck tattoo. U.S. Patent Application Pub. No. 20070036928, now abandoned, describes a removable facial camouflage tattoo for disguising a human face.

Despite these intriguing and--no doubt--innovative tattoo--related inventions, by far the most applicable form of intellectual property protection for tattoos is copyright.

Tattoos are different than other forms of artwork in that the "canvas" is human skin. With a painting on canvas, there is no question that (absent a copyright assignment to the purchaser) the artist retains the copyright to the painting even though the purchaser may pay dearly for it. In other words, the purchaser owns the copy of the artwork on canvas but has no right to reproduce that work.
Ownership of the copyright to a tattoo design is no different than in any other context: the artist owns the copyright to the work unless it is expressly assigned to the person who obtained the tattoo. This is a difficult concept for some to accept because we like to believe that our bodies belong to us in every respect.

In 2005, the artist who designed and put a tattoo on Rasheed Wallace (former NBA player) sued Nike for featuring the player in ads for basketball shoes. The case settled out of court, but the tattoo artist asserted copyright ownership of the tattoo design. More recently, a tattoo artist sought a preliminary injunction to prevent the movie The Hangover Part II from releasing because he had designed the tattoo that appears on Mike Tyson's face, and the tattoo was featured prominently in promoting the movie. Whitmill v. Warner Bros. Entertainment Inc., 4:11-cv-00752 (E.D. Mo. 2011). Although the judge denied the motion for a preliminary injunction, she soundly rejected Warner Brothers' fair use claims and held that the tattoo artist had a protectable copyright in the tattoo design.

Keep in mind that with both the Nike and Warner Brothers cases, the tattoos at issue were highly original. As with other forms of creative works, the "design" must be original in order to be protected by copyright. Not all tattoos will be sufficiently original to warrant copyright protection; it is unlikely that a barbed wire or simple star design would be considered copyrightable.

For most people, tattoos are personal statements that will never be on wide-scale public display; however, for celebrities, athletes and similar figures, the lesson to be gleaned from the Nike and Warner Brothers cases is that a copyright assignment should be obtained from the tattoo artist in advance of the artwork being applied to the body. In the absence of such an assignment, every public appearance raises the specter of a copyright infringement lawsuit.
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© 2014 Antoinette M. Tease, P.L.L.C. All Rights Reserved.
 
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