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Tattoo Artists and Copyrights

Although tattooing has been around for a long time, it has recently become a more mainstream form of art. In fact, a recent poll shows that over one in five American adults now has a tattoo. As with any burgeoning industry, the law is now struggling to accommodate it. For tattoo artists, one of the most important fields of law for them to become familiar with is copyright law, which protects artistic expressions. The first question to ask is whether a tattoo can be copyrighted, and the second is what sort of complications that can lead to.

Can a Tattoo Be Copyrighted?

The short answer is that a tattoo can probably be copyrighted. There is no case in Florida that officially settles the question, but federal courts in other jurisdictions have looked favorably on the question. Additionally, tattoos appear to fall under the definition of a copyrightable work based purely on the wording of the Copyright Act.

Copyright law protects “original works of authorship fixed in a tangible medium of expression.” That sentence produces two separate requirements. The first requirement is that it must be an original work of authorship, meaning that it must be a non-copied piece of work created by the artist, such as an original design for a tattoo. The second requirement is fixation, meaning that the artist must create some tangible piece of artwork. Copyright protects expressions, not ideas. So, the tattoo must be drawn on paper or actually inked before protection arises.

Who Owns It?

The fact that tattoos are copyrightable gives rise to another question, “who owns the copyright?” The usual rule is that the author of the work is the owner of the copyright. However, this looks a little unusual in a practical sense since most visual artists do not put their work onto another living person. There is something intuitively odd about the idea that a person who buys a tattoo might have limitations placed on their use of it. For instance, one could easily make an argument that a person who has a portrait taken with their tattoo visible is creating an infringing copy of that tattoo just like a person who makes a YouTube video with a copyrighted song has created an infringing copy of the song. A similar issue arose when the movie studio advertising for “The Hangover” used Mike Tyson’s famous tattoo because he was in the movie. The tattoo artist sued, but unfortunately the case settled without clarifying the law.

This is still an open question in the courts, but courts will likely rule that the tattoo artist or designer is the person who holds the copyright since the Copyright Act is fairly clear that copyright belongs to the work’s author in most cases. However, courts may not want to unduly restrict the person with the tattoo from doing as they like with their own body just because they have someone else’s copyrighted material on it. Consequently, people with tattoos sued by tattoo artists may be able to rely on fair use, a doctrine that allows limited use of copyrighted works depending on exactly what the use is. Getting a picture taken with the tattoo showing probably falls under fair use, turning it into a trademark may not.

Copyright and tattoos is a burgeoning area of the law, but it is becoming more and more important. If you are an artist whose work is being used in a way you disagree with, contact a Florida copyright attorney at Pike & Lustig, LLP today.

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