21 May 2011

Tattooing Copyright

Image by shelbysdrummond on Flickr

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I guess that it is needless to introduce the character on the image above. He has the image of a scandalous guy and he was featured in more or less such light in the film The Hangover. Did you watch it? I did and found it entertaining.

By the way, do you belong to those eagerly expecting The Hangover Part II? Well, do not be impatient if this blockbuster takes somewhat longer to come in a theater near you.

You will not believe it, if I tell you why this is likely to happen!
Ok, here I go.  The thing is that Mr S. Victor Whitmill, a tattoo artist, claims that Warner Bros

Have Infringed His Copyright In A Tattoo

Yes, you are reading this correct! Well, it is not just some tattoo – it is the tattoo Mike Tyson is wearing on his face and the same arguably worn by an actor in The Hangover Part II. While Mr Whitmill gave its permission to Mr Tyson to lawfully wear the tattoo, this has not been the case with Warner Bros.
The New York Times has brought this amusing story and it truly deserves a read.

Ok, let me address the main question here: can copyright subsist in a tattoo?

Section 102 (a) of the US Copyright Act 1976 states that

Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.
Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.

I would say that once Mr Whitmill establishes that his tattoo meets these criteria it will be protected under US copyright law.
What do you think, is this completely impossible? Let us have a closer look at it!

Work

First of all Mr Whitmill will have to prove that his tattoo is a work. I believe this will cause no problems – a tattoo is not different from a painting, which is definitely a (pictorial or graphic) work.

Fixation

Fixation is an essential criterion for protection under US copyright law. Section 101 of the US Copyright Act gives us the definition of what fixation is:

A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.

Having read the definition, would you express any doubts as to whether Mr Whitmill’s tattoo is sufficiently fixed in Mike Tyson’s face? In my view, one could hardly speak of a tangible medium that is more stable than that gentleman’s visage.

Originality

Originality is the third main criterion for the copyrightability of a work. It is not defined in the Copyright Act, but can be derived from the plenty of judicial authority.
If the tattoo is a Maori-inspired design, as the NYT newspaper article tells us, can Mr Whitmill have authored it then? Following the leading case of Feist v Rural, Mr Whitmill’s tattoo shall be considered original once he establishes that

the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity

Hmm, could Mr Whitmill succeed on this point? In my view originality will be the very issue, provided, however, that the matter will be eventually fought before a Court of competent jurisdiction.

Final Thoughts

Despite my legal interest in the copyrightability of a tattoo, I would ask the same question as did the Harvard Info Law Blog:

Would this be a lawsuit, let alone a front-page NYT article, if the accused infringer wasn’t a big movie studio with a tentpole summer movie on the brink of release?

What do you think?

Comments (9)

  1. 22 May 2011
    Adam Smith said...

    Wow, that’s pretty strange, I never knew that tattoos could be copyrighted.

    I’m also looking forward to Hangover 2, it’s gonna be great!
    Adam Smith recently posted..From Blogger To Youtuber

    • 22 May 2011
      Emil A. Georgiev said...

      Hi Adam,

      a claim for a copyright in a tattoo is not absolutely inconceivable, but either way a court would have the last word.

      My personal opinion, however, is that there will be a settlement pursuant to which Mr Whitmill will be paid an undisclosed amount of money and that will be the end of this story.

  2. 23 May 2011
    Kira Permunian said...

    First time to hear tattooing copyright and it’s really true as you’ve written in this content. This is really interesting and hope they will sue those copying tattoos over there. Oh I still can’t believe this.
    Kira Permunian recently posted..Get Social with Bing and Google Social Searches

    • 23 May 2011
      Emil A. Georgiev said...

      Kira,

      thank you for coming by and leaving a comment!

      Indeed, tattooing has not yet been subjected to a scrutiny in terms of copyright law and this case, owing to its background, has the potential to be groundbreaking -).

      I’ll keep an eye on it.

  3. 24 May 2011
    Emil A. Georgiev said...

    Do not worry about the release of Hangover Part II – Chief Judge Catherine D. Perry denied local tattoo artist S. Victor Whitmill’s motion for a preliminary injunction, thus ensuring that the film will have its start as scheduled Thursday evening.

    Eric Goldman has more on that – http://bit.ly/ik3VhA

  4. 3 June 2011

    I was really surprised when I read your work. I never thought that it isn’t okay to copy the tattoo. Now, it is clearer to me. And I think, it is a kind of masterpiece made by an artist. As what you have mentioned it is a kind of art, so perhaps he has the right to sue those who copied hi work. 🙂

  5. 21 June 2011
    Emil A. Georgiev said...

    Not surprisingly, Warner and Mr Whitmill have agreed to settle the case, the Hollywood Esq. reports – http://bit.ly/kf3sRi

  6. 6 November 2011
    brendan said...

    Wow, I was totally unaware that tattoo copyright actually existed. I suppose it makes sense as a tattoo is an artwork in someway or another so every artwork should be respected with copyright. For some reason it just seems weird, ohh well at least I’m not a tattoo artist! 🙂
    brendan recently posted..How to Get Rid of a Stuffy Nose

  7. 8 March 2012
    Liane Markus said...

    I am aware of tattoo copyright and I am sure many still wants to know more about this. I am sure this will grab the attention of the people who wants to gain more information about this.
    Liane Markus recently posted..נטורופתיה

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