The Copyright Implications of Tattoos
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the recipient, and are therefore undoubt- The Copyright Implications edly fixed in a tangible medium. Also, the Tyson tattoo was a pictorial work and very of Tattoos likely exhibited at least a “modicum of creativity.” While it is likely that some tat- Why Getting Inked Can Get You into Court toos are so commonplace that they would not even meet the “modicum of creativ- ity” threshold discussed above—such as a BY TIMOTHY C. BRADLEY generic heart with the word “mom” written across it, or a phrase of the recipient’s n the 2009 blockbuster film The Hangover,1 after a particularly unruly bachelor choosing in a commonplace font—the Ty- party in Las Vegas, the film’s main characters wake up unable to determine what son tattoo no doubt was unique enough to Ihappened the night before. Upon realizing that they have kidnapped Mike Tyson’s meet this low threshold.8 Therefore, absent tiger, they endeavor to return the tiger to its master. Tyson’s subsequent appearance in any exceptions, the Tyson tattoo would the film contributes substantially to the protagonists’ “What Happens in Vegas . .” indeed be protectable, giving the copyright experience, and Tyson’s famous facial tribal tattoo (the Tyson tattoo) is featured promi- owner the exclusive right to make copies nently in Tyson’s scenes in the film. and derivative works of the tattoo. In the 2011 sequel, The Hangover Part II,2 after another bachelor party of epic pro- Warner Brothers did not concede this portions, the main characters once again wake up in unfamiliar surroundings, and try point, and instead made the meritless argu- to piece together their previous night. In The Hangover Part II, the character played by ment that the human body was a “useful actor Ed Helms wakes up with a facial tribal tattoo closely resembling that of Tyson’s article” that should be exempted from (the Helms tattoo). The Helms tattoo was featured prominently in the movie poster copyright protection. For useful articles, and trailer for The Hangover Part II in early 2011. such as automobiles and clothing, mechan- Just over a month before the scheduled Memorial Day 2011 release of The Hangover ical or utilitarian functions of the articles Part II, on April 25, 2011, S. Victor Whitmill, the tattoo artist who created the Tyson are not protectable. Rather, such works are tattoo, sued Warner Brothers in the Eastern District of Missouri, seeking monetary protectable only to the extent that designs damages for copyright infringement of the Tyson tattoo, and a preliminary injunction of the article incorporate features that preventing the release of the film. Although the suit quickly settled, Whitmill’s com- can be identified separately from, and are plaint raises a number of interesting questions about the often unconsidered intellec- capable of existing independently of, the tual property aspects of tattoos. utilitarian aspects of the article.9 As works of art, tattoos fall within the realm of copyrights. The copyrightability of This line of argument makes sense if the tattoos, the ownership of those rights, and the corresponding application of existing artist created the useful article in question, copyright doctrine to tattoos are still largely issues of first impression for the courts. but in this case Whitmill created only the One notable dispute arose in 2005 over recent NBA champion Rasheed Wallace’s tattoo and had absolutely nothing to do Egyptian-themed arm tattoo. Nike had aired a commercial showing a close-up of Wal- with the creation of Tyson the person. The lace and his tattoo in which the tattoo was being created by a computerized simulation. Tyson tattoo is far more analogous to an The commercial also included a voice-over from Wallace explaining the meaning be- artist applying a mural to a building or a hind the tattoo.3 The tattoo artist who had created the Wallace tattoo sued for damages painting to a car. In both of these examples, in the U.S. District Court for the District of Oregon, but the case settled quickly before one cannot sensibly argue that the medium the court had a chance to weigh in on its merits. chosen renders the surface artistry to be In Gonzales v. Kid Zone, Ltd.,4 the Northern District of Illinois found that the inseparable from its canvas. unauthorized use of copyright-registered pictorial works on temporary tattoos violated Warner Brothers made much of Whit- the artist’s copyright. However, that case involved temporary tattoos, not permanent mill having described the Tyson tattoo tattoos. Also, the dispute was between the artist and a manufacturer, and did not impli- in his copyright registration as “Artwork cate the rights of any temporary tattoo recipients. on 3-D object,”10 and of Whitmill having As will be described below in greater detail, while it is likely that Whitmill did applied the Tyson tattoo directly to Tyson’s indeed own the copyrights to the Tyson tattoo, given the facts of the case it is unlikely face (apparently not using tattoo transfer that he would have been able to obtain substantial damages, or any damages for that paper that is often used to prepare an out- matter, from Warner Brothers had the case gone to trial. line of a proposed tattoo prior to applica- tion).11 Had Whitmill instead directed his COPYRIGHTABILITY OF TATTOOS copyright registration to a two-dimensional A first issue raised in the dispute over The Hangover Part II is whether tattoos are rendering of the tattoo (perhaps a copy of indeed copyrightable, and if so who owns those copyrights. Under § 102 of the U.S. transfer paper to be used), he may have Copyright Act, copyright protection extends to “pictorial, graphic, and sculptural works” been able to more easily avoid this line of that are fixed in a tangible medium.5 That is, the medium must be “sufficiently permanent argumentation. Nevertheless, given the or stable to permit it to be perceived, reproduced, or otherwise communicated for a period easily identified differences between Tyson’s of more than transitory duration.”6 The creativity threshold for protection is very low, as face and the Tyson tattoo, separability is only “independent creation plus a modicum of creativity” is required.7 quite apparent, and Warner Brothers’ posi- Applying these factors to the Tyson tattoo, tattoos are permanent at least for the life of tion against copyrightability is very weak. 1 • Published in Entertainment & Sports Lawyer, Volume 29, Number 3, Fall 2011. © 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. Thus, notwithstanding Warner Brothers’ argument to the contrary, tattoos appear to becomes part of a bigger whole, and may fall squarely within § 102, and are therefore copyrightable. be slightly or significantly changed, and implicates the derivative works right. OWNERSHIP Even outside the realm of sleeves, Having established that tattoos are copyrightable, the question then arises as to who tattoos are sometimes modified. A famous owns those copyrights—the artist or the recipient. example of this is Johnny Depp’s “Winona The default rule is that copyright ownership extends to the artist unless there is an Forever” tattoo being changed to “Wino agreement to the contrary or the work in question is a “work for hire.”12 The “work for Forever” after his breakup with Winona hire” designation applies to a narrow set of circumstances, when the work in question is Ryder.18 This modification is a clear (1) prepared by an employee within the scope of his or her employment; or (2) special- example of a derivative work. Photo- ly ordered or commissioned for use as a contribution to a collective work, as a part of graphs could also be considered derivative a motion picture or other audiovisual work, as a translation, as a supplementary work, works, as they may add additional artistic as a compilation, as an instructional text, as a test, as answer material for a test, or as expression to the original tattoo. Absent an atlas.13 The second category also requires a written agreement between the parties the implied license, these uses could be specifying that the work is a work for hire.14 actionable. Therefore, the implied license The Tyson tattoo does not fall within any of these categories. First, there was no also must necessarily include at least a agreement assigning Whitmill’s copyrights to Tyson. Second, regarding the “work for limited right to create derivative works. hire” designation, Whitmill was an independent contractor and not an employee of Ty- Beyond these examples that are son, the Tyson tattoo does not fall within any of the enumerated categories, and there commonly understood to be permissible was no agreement classifying the Tyson tattoo as a work for hire. Thus, the default rule under the norms of tattooing, the extent applies and Whitmill, the artist, retains the rights to his work. to which additional copying is permit- Whitmill’s ownership claim is further bolstered by a tattoo release signed by Tyson in ted is questionable. For example, what 2003 at Whitmill’s studio. The release was primarily a liability waiver, including state- if a tattoo recipient wanted to have an ments such as “I am not pregnant,” “I am over 18 years of age,” and “I am not under the action figure created, or wanted to star in influence of drugs or alcohol.” However, the release also included a declaration that “I an animated series as himself or herself, understand that all artwork, sketches and drawings related to my tattoo and any photo- or wanted to have a wax statute of his graphs of my tattoo are property of Paradox-Studio of Dermagraphics.”15 Thus, although or her likeness created? Although these not necessary for Whitmill’s ownership claim, the release does strengthen his position.