First of all, is human skin a medium for expression?
To form the basis for copyrightability under the United States 1976 Copyright Act, work should be “fixed in any tangible medium of expression, now known or later developed, from which [the expression] can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” Fixed work, as interpreted by courts, has two pre-requisite conditions. Firstly, the work should be embodied in a specific medium to be perceived and reproduced. Secondly, the work should be embodied in the medium for more than a “transitory” period. Unless these two conditions are met, a work cannot be deemed “fixed”. Neither the Copyright Act nor the history of the application of the Act has placed any limitations on the extent of copyrightability of a work fixed in various media. Statutes and judgements seem to be silent on interpreting limitations on the extent of copyrightability concerning the medium of fixation. The statute only indicates the condition of fixation, which courts have interpreted into the two conditions as discussed above (embodiment and duration).
For work to be fixed, it must sustain more than transitory duration. There are arguments for and against why tattoos can be deemed “fixed”. The work is fixed and permanent to the human eye because it cannot be undone or removed from human skin unless one takes extreme pain to do so. On the other hand, the structure of human skin is not permanent because we are beings who constantly change and age with time. Although the human eye sees the ink as permanent, human skin through a microscope would tell us otherwise, as per scientific evidence.
There is, however, no mention of any required conditions to be met by the media of expression as per the U. S. Copyright Act. Hence, the main doubt arises not whether human skin is a copyrightable medium, but whether human skin fits the current definition of a valid medium.
The term “medium” has not been defined by the U. S. Copyright Act. When a term mentioned in a statute is undefined, a “plain and ordinary” interpretation of the word can be made. In the current instance, the “plain and ordinary” meaning of the word “medium” is “a method or way of expressing something”. If this understanding is extrapolated to tattoos, then the human body certainly qualifies as a means of artistic expression.
Can a tattoo be copyrighted?
Now that we know that tattoos are embodied in a tangible medium of expression, it is time to answer an important question. Can tattoos be copyrighted? The very fact that human skin is a tangible medium of expression itself would render it copyrightable, as long as the pictorial work is original. A certain degree of originality is characteristic of any work worthy of copyright protection. Some tattoo designs have the necessary degree of originality. Others, such as the cliched heart with an arrow piercing it, a dog’s paw print, or maybe a butterfly, may not obtain copyright because of a lack of originality.
The current understanding of originality comprises two essentials—one, independent work of the author and a demonstration of a minimal degree of creativity. The extent of these two factors need not be unique or new; all that is necessary is that the author contributes something that is “obviously his own” or a “little more than just copying”. In the case of a tattoo, the originality requirement must not impede the copyrightability of every tattoo. In the case of a custom tattoo, copyrightability should be dealt with two distinct but related pieces of art. One, on the customer’s body. Two, in the drawing of the tattoo that the tattoo artist usually creates before inking it. It is often rare that tattoo artists ink a design freehand. They typically start with a paper design, copy it to a stencil placed on the skin, and serve as a template to outline the design. The difference between the paper drawing and the tattoo is that the former is a two-dimensional design, and the latter is a three-dimensional work. Sometimes, it is possible that the shift to three-dimension can change the tattoo in drastic ways, perhaps through shading and colour. If the final tattoo displays creativity absent in the paper drawing, the tattoo could be considered a derivative work. If there is no change from paper to skin, it is a mere reproduction of the drawing.
The design drawings fall into the U. S. Copyright Act’s definition of “pictorial, graphic, and sculptural” pieces. This parallel can be drawn for tattoos on a human client too. As long as a tattoo satisfies the condition of adequate creativity and is independently created, it is original. The only other element remaining is fixation. A pencil or an ink drawing of the tattoo fulfills the condition, apart from human skin serving as a medium. The amalgamation of originality and fixation makes the tattoo worthy of copyright protection. Tattoos can be copyrighted.
When copyright exists, it gives the author of the work numerous exclusive rights, such as the right to reproduce, adapt, display publicly, and sometimes, even moral rights. This affordability of rights raises some complex questions. Who owns the copyright over tattoo designs? How far do the rights of the owner extend? What if other forms of visual art are incorporated into tattoo designs? These issues will be addressed as we read further.
Who owns the copyright on a tattoo?
Section 201 of the U. S. Copyright Act states that “copyright in work protected under this title vests in the author or authors of the work.” The Act talks about three primary forms of authorship: Sole Authorship, Joint Authorship and “Works-For-Hire”. Each of these forms has varied impacts on ownership of work. Before we understand them, the difference between authorship and ownership must be addressed.
The terms “ownership” and “authorship” can be used together depending on the medium of fixation of the work. When we assume that previously-prepared designs and spontaneous designs of tattoos are both copyrightable, note that a person can own a tattoo but may not necessarily own the copyright in it. For instance, a previously-designed tattoo is pre-made and is later inked on a person’s body. Here, there is an author who owns the copyright in the design, and the owner of the physical tattoo possesses it. This division may cause some confusion when we try answering the question, “Who is the copyright owner for a tattoo?” Understanding the different forms of authorship will shed some light on this.
In the case of Whitmill v. Warner Bros. Entertainment Inc. (Case No. 4:11-CV752 CDP), tattoo artist Whitmill sued Warner Bros. for copyright infringement. Whitmill claimed that Warner Bros. copied, displayed, distributed, and created unauthorized derivative work of the tattoo he designed for Mike Tyson in the movie Hangover 2 without prior permission. Whitmill had designed Tyson’s iconic face tattoo freehand. Before the case was dismissed, Judge Perry made specific observations denying that tattoos be given copyright protection. She observed that Whitmill did not impose restrictions on how Tyson used his face or when or where he was allowed to alter the tattoo, but only that he held copyright over it, which was reasonable.
The Court refused to grant an injunction on the grounds that equities and public interest ought to be balanced. Although the tattoo was repeatedly used throughout the film, the Court did not favour Whitmill’s infringement claim, and the case was settled outside of Court.
In Reed v. Nike Inc. 17 Civ. 7575 (LGS) (S.D.N.Y. May. 31, 2019), Matthew Reed, a tattoo and graphic artist, filed a complaint against Rashid Wallace - a player in the NBA, Nike and advertising agency Weiden + Kennedy. Reed claimed that Nike and Weiden + Kennedy directly infringed his copyright in the tattoo he designed on Wallace’s arm in a Nike advertising campaign on television and the website.
The advertisement had a close-up of the tattoo and displayed its creation by a simulation with Wallace voicing it over. After Reed knew this, he applied to register all his copyrights to the tattoo. Reed also claimed that Wallace contributed to the infringement by supporting Nike and Weiden + Kennedy in stating that Wallace owned all rights in the tattoo.
During his initial meeting with Reed, Wallace had signed a release, which, inter alia, stated that Wallace freely consented to have the tattoo inked and was releasing the tattoo parlour from any liability. However, this agreement did not mention the assignment or a license of Reed’s copyright interests in the tattoo design. It did not refer to ownership interests in the drawings, photography, artwork or similar tattoos.
Reed sought a permanent injunction, damages and profits, costs, court fees, and prejudgment interests. This case, which came before Whitmill v. Warner Bros. Entertainment Inc., also was settled following a confidential settlement contract.
Cases concerning copyrighted tattoos have also been observed in video games, as in Solid Oak Sketches, LLC v. 2K Games, Inc., 449 F. Supp. 3d 333 (S.D.N.Y. 2020). Solid Oak Sketches, LLC, the licensee of copyrighted tattoos sported by professional basketball athletes, sued Interactive Entertainment, a videogame company. Solid Oak claimed that there was an infringement of copyright. The New York District Court ruled that the usage of copyrighted tattoos in a videogame constituted fair use and was transformative. Additionally, the Court stated that the tattoos displayed on the basketball athletes in the game were not substantially similar to the actual athletes’ tattoos.
The Illinois District Court in the case of Alexander v. Take-Two Interactive Software, Inc., 489 F. Supp. 3d 812 (S.D. Ill. 2020) ruled that the use of Randy Orton’s tattoo in a videogame to portray him indeed constituted copyright infringement. The grounds for the same were that the artist was able to prove that legally actionable reproduction of the tattoo took place, the reproduction of the entire work and the market harm that could happen due to it was of more concern than fair use, and the reproduction negated the de minimis defence. This case was different from the Solid Oak case in that the use was not de minimis and did not entitle the usage of the fair use exception.
Since Reed v. Wallace, there was only a trickle of tattoo copyright cases. If tattoo artists file insufficient numbers of such cases, it is not likely that tattoo copyright cases will ever reach trial in the future. Without this, courts will not see an opportunity to amend and clarify the law in this ambit, leaving tattoo artists contemplating suing for copyright in doubt about their success.
While the numbers of tattoo artists enforcing their copyright against unauthorized use by companies and people seem to multiply, most cases continue to be settled and do not give courts a chance to address conclusively the manner of applying U. S. copyright law to tattoo designs.
The real question on tattoo copyrightability concerns the balance between protecting copyright owners’ rights and promoting creativity. To not be able to make a reproduction lawfully would imply that creativity has the lower hand.
In tattoo copyright cases, attention must be paid to the first time a tattoo was designed. Whether the tattoo was drawn on paper prior to its application or designed in the process of inking human skin is an essential question that determines if a tattoo should obtain copyright protection. Another question in such cases that continues to be answered vaguely is whether an implied license is created when a tattoo artist tattoos a celebrity client. This question could also address the dilemma of whether the bearers of the tattoo are contributory infringers in the previously discussed cases.
Another area of ambiguity that adds to the pile of unanswered questions by the American copyright statute is whether implied licenses extend to third parties in cases where a third party profited off tattoo artists’ works, which remains the most significant issue of all in the tattoo fraternity.
In conclusion, the designs of tattoo artists are just as entitled to copyright protection as other works of art. However, these artists, already demotivated by the inconvenience that accompanies the unconsented use of original designs, may be all the more downtrodden in enforcing their copyrights due to the lack of understanding and analysis of tattoos as a copyrightable subject matter by courts. When one considers the social status of tattoo artists and professional society’s patronizing view of people who bear tattoos, an absence of respite seems to stalk them to this day.