Current Legal Issues with Tattoos
32 percent of Americans have at least one tattoo and that percentage jumps to 46 percent for Americans between the ages of 30 and 49. This is as of August, 2023, I'll link to the study. But I am your lunar lawyer friend, Maria, and my vibe is helping holistic healers and spiritual entrepreneurs protect their businesses as they grow online.
And I was wondering… can you copyright a tattoo? Should you?
Who owns the copyright to a tattoo? And what can content creators learn from the lawsuits that are out there surrounding tattoos? I'm gonna tell you.
Watch the video below or scroll down to read more!
Does a tattoo qualify for copyright protection?
The first thing we have to think through is whether a tattoo even qualifies for copyright protection. And to look into this, we need to look at the requirements for copyright protection.
Requirements for copyright protection
The first requirement is that the “thing” has to be a creative work of authorship. So there must be some creativity there. It can't just be a word. It can't be a stock art or a little smiley face.
The second requirement for copyright protection is that it has to be fixed in a tangible medium of expression. Well, a tattoo is fixed. It is on the skin. But apparently there's been some heavy debate in the legal community about whether human body is a tangible medium of expression.
Think about it. If a tattoo artist owns the rights to the artwork that he or she puts on your skin, do they own your skin?
Would you have to seek permission from the artist to change it or remove it completely? Would you have to ask permission before modeling or appearing in some kind of entertainment scenario? Well, let’s look at what the lawsuits have to say.
Lawsuits About Tattoos
Most of the lawsuits about tattoos have to do with athletes. First up? Mike Tyson. He is famous for that face tattoo.
He is also famous for other things, one of which is having a cameo on the movie The Hangover.
In one of the sequels for The Hangover, they put Mike Tyson’s face tattoo on Ed Helms’ face.
Cue the lawsuit!
Mike Tyson's tattoo artist, Victor Whitmell, sued Warner Brothers for that. He had successfully registered the tattoo with the copyright office ✅, and Tyson signed something giving the tattoo artist rights to that tattoo. ✅
The case actually settled, but some of those really interesting questions came up around whether the body is a tangible medium of expression and a lot of people say, no, for those reasons that I talked about above.
It's kind of weird to think about someone else having rights to parts of your body, especially your skin. So, speaking of sports, lawsuits have cropped up since that Mike Tyson case, specifically around recreating athletes in the video game context.
The NFL Players Association actually started recommending that athletes get releases from their tattoo artists.
Takeaways from those lawsuits for content creators, online business owners, and spiritual entrepreneurs.
Here's the takeaway for content creators, online business owners, and spiritual entrepreneurs. Either
Talk through usage rights with your tattoo artist when you're in that tattoo creation mode; or
Play it safe and cover up your tattoo when you're posting content online, especially if there's any way that the content that you're creating can be said to support or grow your business.
Can you reference a copyrighted work when creating a tattoo?
What about referencing (or copying!) a famous work of art or a famous photograph — things that that are already copyright protected — when getting a tattoo. Well, that's exactly what happened in another lawsuit.
Celebrity Tattoo Artist Kat Von D’s Copyright Lawsuit
This case involved celebrity tattoo artist Kat Von D, who referenced a famous photo of Miles Davis in a tattoo she ultimately created for a friend (for free).
The case went all the way to trial. A jury in Los Angeles ultimately found that even though Kat Von D admittedly used the photo as a reference when doing the tattoo, 1. She didn't profit from it (like I said, it was for a friend), and 2. The use was pretty transformative. (Psst, “transformative” is fair use language!)
What’s fair use? Fair use says, “Hey, you know what? This activity is copyright infringement. But we're going to call this use ‘fair’ because it meets certain criteria.”
The biggie in this lawsuit was that the degree of changes made to the original work, the reference photo, were balanced against its commercial nature, whether this art was customarily licensed for purposes of tattooing.
Von D argued that referencing existing photos and art was very commonplace in the tattoo industry and requiring otherwise would totally upend the industry.
Default rules for ownership of creative works
What are the default rules for ownership of creative works? You've heard me talk about it before, but who owns a work of art by default?
Well, unless it's an employee creating something in the scope of that employee’s job, or an independent contractor that has signed something saying that they're giving the rights to you, the rights to a creative work automatically vest with the creator, the person creating the artwork. (Which, in this case, is the tattoo artist.)
PSST… need a solid Independent Contractor Agreement? Look no further than The Legal Apothecary Library.
But what about if you're working together to create that artwork? What if you, as the tattoo-ee, have put in a lot of input and maybe some design elements into the tattoo. And the tattoo artist is simply inking it on? Well, then you get into co-creation and possibly a joint copyrighted work and that complicates things.
Avoiding legal issues when it comes to your tattoos and business activities
It's good to have these conversations with your tattoo artist, just so everyone is on the same page. But you knew that because you've heard me say many times, that is the purpose of a contract… making sure that everybody is on the same page.
Also, make sure you know where inspiration is coming from when you're working with a tattoo artist.
Finally, a full release would make clear that the person receiving the tattoo has all rights to display the tattoo and appear publicly in any media with the tattoo.
Of course there's middle ground and potential for negotiation (like requiring or at least making best efforts to credit the tattoo artist in any publication where the photos appear).
Like I said, it's all negotiable.
I hope you had fun with me learning about copyright ownership and tattoos.