Is my tattoo copyrighted? Who owns the intellectual property rights to my tattoo? Do I, or does my tattoo artist? Does my tattoo infringe on copyright laws? Can I get a tattoo of an already copyrighted image? If I do, can I be sued for copyright infringement?
These are probably the last questions on the mind of any person on the receiving end of a tattoo and probably that of the artist as well. But several copyright issues are immediately present when dealing with tattoos, including the rights of the tattoo artist, the customer, and the owner of the image if it is not an original work of the tattoo artist.
Copyright of Original Works by a Tattoo Artist
The first question that needs to be asked is whether tattoos can be copyrighted. There is very little case law that addresses tattoos specifically. However, it seems rather clear that, at a minimum, tattoos are works of art under U.S. copyright law entitled to protection as “pictoral, graphic, [or] sculptural” work permanently affixed to a canvas, albeit a human one.
If the tattoo can be copyrighted, who is the owner of the related rights? The tattoo artist? The bearer of the tattoo? This is another largely unsettled question in U.S. copyright law. The default assumption is that the artist owns the copyright to an original work created by the tattoo artist. However, some rights are not easily exercised when the work of art is affixed to a human canvas. For example, the copyright owner typically has the exclusive right to control the reproduction, distribution, and public display of the work. Does this mean the tattoo artist can require you to keep your tattoo covered in public without his express permission? Probably not.
Tattoos of Previously Copyrighted Images
If a customer wants a tattoo of the Rolling Stones logo on his arm, would the tattoo artist be infringing on the copyright of the owner of the logo, Rolling Stones & Universal Music Group? If a customer wants a tattoo of Spider-Man swinging from a web on his back, would the customer, by having the tattoo on his body, be infringing on the copyright of Stan Lee Media, Inc. or Marvel Worldwide Inc.?
Tattoos like these likely violate the copyright of the owner of the work. Both the artist, and the canvas, can be exposed to liability for damages. Under U.S. copyright law, the holder of the copyright may be entitled to an award for damages and lost profits resulting from the infringement. Statutory damages awarded to the copyright holder can be as high as $150,000 in certain circumstances.
But the more practical question is, would the copyright holder expend the time and expense to sue your local tattoo artist for tattooing a Tampa Bay Buccaneers logo on a die-hard fan? Is the copyright holder going to petition a judge to order that the tattoo be surgically removed? This is unlikely, indeed.
What is the conclusion to be taken from all of this? The best option is to avoid getting (or giving) tattoos of copyrighted images. And when it comes to original works of the tattoo artist, a written agreement between the artist and the customer detailing who owns the rights to the work would eliminate most potential copyright issues. A copyright infringement lawsuit can make tattoos even more painful for the recipient, and possibly the artist as well.
By Attorney Jaremey Shelton