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Tattoos and copyright

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Tattoos and Copyright

By Melanie Bouton, Executive Counsel, Freehills

Have you ever wondered whether images of you with your tattoo infringe copyright?

Tattoos do not seem that different from other artistic works insofar as creativity is involved. What sets them apart is use of the human body as a 'canvas.'

If copyright subsists in tattoos, infringement issues may need to be considered in many different contexts: simply photographing a person with their tattoo, getting a tattoo that copies someone else's tattoo, advertising which features a famous person and their well-known tattoo, applying a tattoo image to products, and so on.

Even if nothing is said between the tattoo artist and the individual, it's likely that some use would be authorised under an implied licence, for example reproductions in photographs where the tattoo is visible only incidentally – this flows from the nature of a tattoo. But where would you draw the line? Some recent cases outside of Australia, each involving a further degree of commercial exploitation, highlight these issues.

Recent claims by tattoo artists

'Hangover II'

In the United States, this issue of copyright in tattoos made the headlines this year following a suit by S. Victor Whitmill against Warner Bros. Entertainment, Inc. Whitmill is the tattoo artist who created Mike Tyson's distinctive facial tattoo.

Tyson appeared, with his tattoo, in Warner Bros' movie 'The Hangover' in 2009. Warner Bros. noted that a Google search for 'Tyson face tattoo' yielded 493,000 images of the tattoo, that Tyson also appeared, with his tattoo, in a documentary entitled 'Tyson' and in the film 'Rocky Balboa,' and that Tyson has also sought a trade mark registration for a 2-D image of his face tattoo for a range of products. But Whitmill didn't take action until Warner Bros. started to promote its movie 'Hangover II.'

In this sequel, the Stu Price character, played by Ed Helms, wakes up bearing a tattoo that is similar to the Mike Tyson tattoo, and the tattoo plays a role in the plot of the movie. Tyson, with his tattoo, also appears in the sequel. The marketing and promotion for 'Hangover II' featured Ed Helms with this tattoo. 

Whitmill stated that his action was not about Mike Tyson. It was about Warner Bros. making infringing copies of Whitmill's art. Whitmill sought court orders to stop Warner Bros. promoting and showing 'Hangover II' featuring the tattoo. Whitmill also applied for money damages and for an award of Warner Bros.' profits from the infringement. 

The court denied Whitmill's request for a preliminary order stopping Warner Bros.' promotion and release of the movie pending the outcome of the case. The court's decision was based on a 4-factor test. Two of these factors favoured Whitmill. The court stated that (1) Whitmill would likely succeed on copyright infringement, stating, 'Of course tattoos can be copyrighted,' and there was no evidence Warner Bros. had a licence – implied or otherwise, and (2) Whitmill would continue to suffer irreparable harm if the infringement continued. However, this was outweighed by (3) the great harm to Warner Bros. if the release of the movie did not proceed and (4) the public interest in protecting all the businesses in the distribution chain. On this basis, the court denied the motion. The parties then settled out of court.

Rasheed Wallace and Nike

In 2005, again in the United States, tattoo artist Matthew Reed claimed against prominent NBA player Rasheed Wallace, Nike, Inc. and Nike's advertising agency alleging infringement of Reed's copyright in a tattoo he made on Wallace's arm. While Wallace and his tattoo had appeared in numerous televised NBA games, Reed's claim arose from a Nike advertising campaign in 2004. The tattoo featured prominently in the advertisement, and Wallace talked about the meaning behind the tattoo, an Egyptian-themed family design. This case also settled out of court.

Copyright registrations

As in Australia, registration of copyright is not necessary in the United States for copyright to exist. Registration, however, is possible and provides certain advantages; furthermore, it's necessary to bring a lawsuit for infringement of a US work. In both the Whitmill and Reed cases, the artists obtained US copyright registrations for the tattoos before commencing actions. There are other US copyright registrations for tattoos.

Beckham

In 2005, the online edition of Britain's The Daily Mirror reported that Louis Molloy, the artist who created nine of David Beckham's tattoos, asserted he owned the copyright in Beckham's tattoos and was in negotiations to license the tattoos to the Beckhams for an advertising campaign. However, 'it got too complicated' and didn't proceed.

Copyright protection in tattoos in Australia

In Australia, there do not appear to be any court cases on copyright in tattoos, and there is no system of copyright registration.

For a tattoo to be protected by copyright in Australia, it would need to satisfy a number of requirements, including:

• it must be an original work of the artist;

• it's an 'artistic work.' An 'artistic work' includes a painting, sculpture, drawing or engraving, whether of artistic quality or not. An 'engraving' includes an etching, lithograph, product of photogravure, woodcut, print or similar work; and

• the work must be reduced to some 'material form,' which is defined non-exhaustively as any form of storage, whether or not it can be reproduced.

A 'painting' is not defined in the Copyright Act. In a 1983 English case on whether copyright subsists in the face paint of Adam of 'Adam and the Ants,' the court noted that under the UK copyright act at the time, 'painting' was also undefined, and it was a question of fact whether something is a painting. The court focussed on a painting needing a surface, and the court did not accept that a face, where the face paint could be removed, could be such a surface.

Warner Bros.' expert witness on copyright in the Whitmill case, David Nimmer, stated that copyright protection for tattoos is unprecedented. He also argued that skin is not a suitable 'medium of expression' for copyright protection. Nimmer's reasons included inconsistencies between the rights which necessarily must be accorded the tattoo subject with the copyright rights of the artist. Examples Nimmer gave were possible limitations on the tattoo subject removing or altering the tattoo, tattoo artists unreasonably restricting licences of the tattoos, the right of the artist in the United States to terminate a grant of copyright rights 35 years after the grant, etc.

Tattoos as artistic works?

The commentary on why tattoos are not or should not be accorded copyright protection is not entirely convincing. But in Australia, tattoos still need to fit within the definition of 'artistic work' to be accorded copyright protection.

Tattoos are arguably in the nature of a painting or drawing.

An 'engraving' is not exhaustively defined, and it has been suggested that a tattoo could be in this category, given that ink is injected into layers of skin. However, this is not the typical meaning of engraving, where grooves are cut into a hard surface.

Given this uncertainty as to whether a tattoo qualifies as an artistic work, a simple solution for the artist is to draw the tattoo first on another non-controversial medium (e.g. paper) before applying it to skin. In the Whitmill case, one of the issues was that this wasn't done – Whitmill apparently designed the tattoo straight onto Tyson's face.

Ownership of copyright

Assuming that copyright in the tattoo subsists, the next issue is who owns it and what can be done with it.

The general rules

Generally, under the Copyright Act, the tattoo artist as the creator of the artistic work would own the copyright. If the artist creates the tattoo in the course of his or her employment, the employer would own the copyright. Both rules can be changed by agreement.

If the artist creates the tattoos based on the recipient's instructions that weren't drawings, the artist would likely still own the copyright in the tattoo.

If the recipient made preparatory drawings for the tattoo, the recipient would generally own the copyright in those drawings, including any right to reproduce them as a tattoo.

Joint ownership

It is also possible for copyright in works to be jointly owned, where two artists collaborated to produce a work, and the contribution of each artist is not separate from the contribution of the other author. A person is, however, not a joint author for merely supplying an idea for an artistic work; that person would have to be creating the work jointly with another artist. 

Commissions

If certain types of artistic works are commissioned, the person who commissions owns the copyright. This includes commissions of paintings or drawings of portraits and engravings of any type. If a tattoo is construed as either of these, and the recipient paid for the tattoo, the recipient will generally own the copyright, absent an agreement to the contrary. There is a further qualification that if the recipient made known to the artist, whether expressly or by implication, the purpose for which the work is required, the artist can stop the recipient doing anything with the copyright outside that purpose. Therefore, in this case, the recipient might own the copyright in a tattoo but not be able to use it for any purpose other than as a tattoo (e.g. no merchandising using the image).

Licences of copyright in tattoos

Express or implied licence

The owner of copyright may grant a licence to do certain things. A licence may be express (either orally or in writing) or implied. Generally, a person who pays for copyright material to be produced will have a licence to use it in the manner and for the purpose for which it is created. For example, if a tattoo is created for a person, it becomes part of that person and incidentally may be photographed when that person is photographed; images might be transmitted online if that person's photograph is posted, etc. If the person is a celebrity, it must be contemplated that that person's exposure, with their tattoo, will be wider. What may not be contemplated are other exploitations of the artwork, for example on merchandise, giving other people the same tattoo, etc. Such purposes would likely be outside the scope of any implied licence, and would require the negotiation of a separate express licence.

Incidental reproductions

An implied licence might be restricted to incidental reproductions of the tattoo. Where the focus is on the tattoo itself, this might be outside the scope. For example, while NBA player Rasheed Wallace with his tattoo was televised while playing basketball many times, it was the advertisement which focussed on the tattoo itself which led to a claim.

An incidental depiction of a tattoo in a film or television broadcast is not infringement if the inclusion was only incidental to the principal matters in the film or broadcast. This is an exception under the Copyright Act that does not depend on a licence from the copyright owner. This exception does not extend to internet use or photos. 

If the recipient contemplates other purposes, the recipient might negotiate these rights as part of his or her agreement with the artist.

If the recipient expects the tattoo they receive to be unique, exclusive rights would need to be negotiated with the artist and agreed in writing.

Copyright infringement – remedies

If copyright has been infringed, the copyright owner may seek damages, an account of the infringer's profits and court orders to stop the infringement.

Moral rights, too?

Assuming copyright subsists in tattoos, the tattoo artist would also have moral rights in respect of the tattoos. An artist's moral rights are the rights:

(a) to be attributed as the artist;

(b) not to have someone else falsely attributed as the artist; and

(c) not to have the tattoo subjected to derogatory treatment (e.g. an act in relation to the work which is prejudicial to the artist's honour or reputation).

Moral rights always remain with the artist, even if the copyright is owned by someone else.

It is not an infringement of moral rights not to identify the artist if is reasonable in the circumstances not to. It is also not an infringement of the right of integrity (not to have the work subjected to derogatory treatment) if it was reasonable in the circumstances to subject it to that treatment. There is no 'reasonableness' exception for false attribution.

Depending on what has been done with or in relation to a tattoo, an artist could have a moral rights claim, in addition to a copyright claim.

In brief

Whether you are a tattoo artist, intend to reproduce a tattoo or even receive a tattoo, there are legal implications you need to consider. For more information on the copyright, licensing, infringement and moral rights issues described above, contact the Arts Law Centre of Australia or have a look at the following information sheets available from Arts Law's website:


 

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