INK-rimination?

Recent years it has been a hot topic whether or not tattoos are copyright material, and whether or not a tattooist can claim copyright in a tattoo on another person’s skin. Furthermore, it seems more and more tattoo artists (if this is what we should call them) are specializing in fine art reproductions and graphic designs, and have highly recognizable styles in their tattoos. In other words, it seems tattoos are actually meeting the requirements for copyright protection as being original works.

However, if copyright protection is granted for tattoos, how far should this protection extend? Should a tattooist be able to prevent the person on whose body the tattoo is depicted, from showing it in public, and from being photographed or recorded? Or should it only extend to the prohibition of using the tattoo in a commercial context?

Already we have seen examples of legal actions within this area. In 2011 an American tattoo artist, Mr. Whitmill, filed charges against Warner Bros. Entertainment Inc. claiming copyright for the commercial use of the tattoo on Mike Tyson’s face.  Mr. Whitmill claimed that the producers of the movie The Hangover II pirated his design in the film and in their advertising material, as one of the characters in the movie, during a heavy night out, got a tattoo identical to that of Mike Tyson. Mr. Whitmill filed for monetary damages and a preliminary injunction preventing the release of the film.

Also in the EU we have examples of tattoo artists claiming copyright. In 2005 a UK tattooist Louis Molloy threatened to sue David Beckham after he started a commercial campaign that focused on his tattoo depicting a guardian angel that Molloy had designed for Beckham.

As none of these cases were settled in court, there is no clear answer as to how far the copyright extends in relation to tattoos. It is therefore an interesting discussion, as it seems that tattoos are recognized as works that can be entitled to copyright protection. However, does this mean that people with tattoos, especially celebrities should go around hiding their tattoos making sure that they are not photographed and thereby “copied” as within the meaning of the copyright laws? In reality this means that getting ink under your skin could take you to court.

One might argue, that when a tattooist applies a work of art to a visible part of a person’s body, it must be somewhat implied, that this tattoo becomes a part of this person and his/her identity. Therefore, shouldn’t a tattooist just accept the fact that a part of tattooing people involves this tattoo being seen in public, especially if it is placed in an area not covered by clothes? And even more if it is depicted on the body of a celebrity.

Moreover let’s not forget the fact, that celebs are a great advertiser for their tattooists. Louis Molloy has after his design of David Beckham’s tattoos gained huge success, and he now has his name on the LouMolloy Men’s Fashion collection.

Tattoos are growing in popularity, and it is becoming more and more common to have tattoos, also in visible areas. Celebrities are also showing more and more tattoos, for example artists as Rihanna, Medina, Adam Levine, Kate Moss and Angelina Jolie have several tattoos in visible areas and are often showing them off. They risk ending up in court, if using these tattoos in a commercial context.

According to another IP-blog, “The IPKat”, there are rumors that the NFL Players Association in the US has started advising their agents to make players aware that they should get a release from their tattooist stating who owns the copyright over the tattoo.

Based on this development with tattoos and copyright, we will probably in future see more and more of such copyright disputes. It will be very interesting to see where the courts will draw the line in defining the scope of protection for tattoos, even though it may seem odd that the courts are the place to settle what should be recognized as art.

This writer wonders whether the development seen within the area of body art will develop even further. What if the next thing will be that a plastic surgeon will claim copyright over body sculpturing of a person appearing in a movie or in public and getting attention based on his/her body?

So watch out – getting a tattoo could make you end up in court!

Maria Dam Jensen, Associate

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