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Once thought to be trademarks of sailors, bikers, carnival workers and prison inmates, tattoos are now becoming more popular in mainstream America–on kids in the suburbs, college and professional athletes and celebrities.
According to a 2012 Harris Interactive poll, 20 percent of American adults have permanent body art. But if tattoos are art, then who owns them?
Northern Illinois University Associate Professor of Law Yolanda King specializes in intellectual property law and has written several articles on the topic. She says tattoo art meets the two requirements for copyright protection.
“The first requirement is originality, and within that requirement there are two sub-requirements,” King says. “The work must be independently created by the author, and the second sub-requirement is that the work must possess a minimum level of creativity.”
“The second requirement is fixation—that a work must be fixed in a tangible medium of expression, and tattoos meet that fixation requirement when they’re fixed on a piece of paper, for example, or fixed on the human skin.”
This means there are implications for both tattoo artists and their clients.
“Because they are copyrightable works, then there are concerns about enforcement. Assuming that the author of the tattoo is the tattoo artist, then a client might have concerns about use of the tattoo,” King explains. “Once the client has the tattoo on the skin, can the client appear in public? Can the client appear in media such as film and television? Is it permissible for the client to have photographs taken? These are some of the questions that might concern a tattoo artist and a client.”
There have only been a few cases involving copyright infringements and tattoos thus far. One high profile case involved the use of the Mike Tyson tattoo artwork in the Hangover II movie, but that one was settled out of court.
“It’s not within the norm of the tattoo industry for tattoo artists to sue their clients or sue anybody for use of their tattoos. You’re talking about maybe four or five cases in the past 10 years”
While the instance of a tattoo artist suing a client is not likely—and is probably bad for business—professional athletes, celebrities and sports leagues alike are examining the implication of copyright law on their businesses.
King says there are several things tattoo artists and their clients can do to protect their interests, and they include the following:
- Consult with an attorney about copyright law as it relates to tattoos;
- Have a conversation about copyright law and implications between the artist and the client; and
- Reduce the agreement to writing.
Although applying copyright law to tattoos may seem unconventional, King believes tattoo artists should seek to protect and enforce the copyrights in their works. As more lawsuits are filed, court decisions that recognize both the copyright protection of tattoos and the harm to the tattoo artists—who are often the copyright owners—as a result of the exploitation of their works will become more plentiful and strengthen the control tattoo artists have over their works.