Tattoo in the arms of copyright law – how not to end up in court because of a tattoo?

For some cultures they embody tradition and are works of art. They are elements of fashion or a way to manifest your beliefs. This is how tattoos are usually perceived. Sometimes there’s also a legal aspect to a tattoo. Lawsuits are brought more frequently to courts by tattoo artists claiming damages for copyright infringement, especially in the USA. How can a person with a tattoo violate a tattoo artist’s copyright? A thorough look into copyright law may bring surprising answers.

Tattoo as a work?

Pursuant to the definition in Polish law, the object of a copyright is

any manifestation of creative activity of individual nature, established in any form, irrespective of its value, purpose or form of expression.

If a tattoo artist does not use any third party designs and creates their own composition, such a tattoo is a work within the meaning of the Act, though established in a special way – on the human body. It is then the tattoo artist has a copyright to the work.

Why do we need a copyright agreement / a license agreement for a tattoo?

Qualifying a tattoo as a work as set out above entails a number of traps. Assuming a tattoo meets the requirements for being considered a work, the best way to protect the rights of a tattooed person is to conclude a written agreement transferring economic copyrights to them or a written license which would confirm that the person has an exclusive right to the tattoo, unlimited in time and territory.

If there is no such written agreement, general provisions of the copyright law should be applied and the tattooed person can use the tattoo based on an implied non-exclusive license, which permits quite limited forms of exploitation. In the best case scenario, from the perspective of a tattooed person, this means that the tattoo artist would be able to apply a given design also onto other people. But let’s imagine a situation where a tattooed person removes the tattoo or changes it, therefore violates the integrity of the work within the meaning of the Act or creates a derivative work (by redesigning the original tattoo – on their own or, what is more probable, with the help of another tattoo artist).

According tothe copyright law, the author would potentially be entitled to claim copyrights, like in a situation where song lyrics or a poem is modified, unless it could be proved that the modifications were implemented out of necessity and the author has no justified grounds for objecting to them. Many questions appear – what if a teenager stops being a true fan of a teenage rock or girls’ band – would the tattoo modification be a life necessity? Many will say yes. Could such cases win in Poland? They would definitely set a precedent. So far, Polish courts have never adjudicated in cases on copyright infringement with respect to tattoos, though sooner or later such cases will surely appear.

Tattoo in an advertisement

Let’s complicate the situation even more. What if a tattooed person decides to appear in an advertisement and thus makes their image available to public along with the tattoo? On one hand, it may be argued the commercial use of a tattoo, e.g. in an advertisement, requires the tattoo author’s permission. On the other hand, by making the tattoo, which thus becomes an integral part of the human body, the tattoo author agrees their work will be made publicly available by the tattooed person. One thing, however, is to walk with a tattooed shoulder on the street and quite another is to focus the attention of an advertisement audience on the tattoo which is used to sell a particular product or service.

Tattoo disputes – films and computer games

So far the most famous court cases regarding violation of tattoo artists’ copyrights have been settled. For example, there was a case brought to court by Mike Tyson’s tattoo artist, S. Victor Whitmill, who sued Warner Brothers for copyright infringement due to depicting Tyson’s tattoo in the film Hangover 2. A tattoo artist, Louis Molloy, sued David Beckham for displaying his tattoos in one of his advertising campaigns.

Another case was the lawsuit of a tattoo artist, Chris Escobedo, who designed a tattoo for Carlos Condit, an MMA fighter, against THQ, the publisher of a video game – UFC UNDISPUTED 3. The case related to depicting an image of the fighter with a tattoo. Escobedo’s lawyers argued people often believe they are the owners of images on their bodies, but in reality the owner of the tattoo design is its author, at least until a copyright agreement is concluded.

All cases were settled, which means that it wasn’t the court which ruled on whether the claims were justified or not.

Perhaps a change will come with the action filed in New York federal court at the beginning of February 2016 over a copyright infringement in relation to tattoos featured on the bodies of certain NBA players. The Solid Oak Sketches tattoo studio accused the “NBA 2K16” video game makers, Take-Two Interactive and Visual Concepts, of illegally featuring of the tattoos of the following NBA players – LeBron James, Kobe Bryant, DeAndrew Jordan, Eric Bledsoe and Kenyon Bryant.

The designs were created by three tattoo authors: Shawn Rome, Justin Wright and Tommy Ray Cornett, who signed copyright agreements with the players. However, the agreements did not include any clauses on the transfer of these rights, e.g. to video game producers. Such agreements were also not signed between the tattoo authors and the video game producers. Solid Oak Sketches argues that Take-Two copied the tattoo designs without consulting their authors in advance and thus infringed on their copyrights.

The lawyers representing Solid Oak Sketches emphasize that the agreements with the players specify that the entity using their image for promotional and advertising purposes should be granted permission by the studio for using tattoo designs, and that Take-Two knew about this requirement, but ignored it. What’s more, a photo of a tattooed player features on the game cover, which, according to the studio, means the tattoos are the ‘face’ of the video game.

In the lawsuit, the tattoo studio requests their works to stop being used and claims compensation in the amount of 150 thousand dollars for every case of infringement, pointing to eight works which are on the skin of certain players.

Before the lawsuit was brought to court, Solid Oak Sketches, which had obtained copyrights to the tattoos, had made an offer to Take-Two Interactive and the Visual Concepts studio with respect to regulating the matters amicably by buying a license worth 1.1 million dollars. Take-Two Interactive didn’t decide/agree to sign the license agreement for such an amount and the case went to court.

What are the conclusions for the creative industry?

This will be a precedent case, as it will possibly have considerable significance for this and other proceedings. It should be noted the case regarding legal and copyright tattoo protection is controversial. Irrespective of the rights of tattoo authors, who often are very talented artists, it needs to be remembered that every person has their fundamental right to freedom of managing their own body, which could be limited by a legal and copyright agreement with respect to the work – a tattoo – established, all in all, on an unusual carrier.

By way of cautious analogy, the judgement of the European Court of Human Rights in Strasbourg should be noted here. The ECHR stated it may be possible to resolve the conflict between the protection of copyright and freedom of expression to the benefit of the latter (more on this can be found here). Similar dilemmas on issues very close to copyrights can be observed in many other situations, such as the conflict between real estate rights and copyrights to the architectural design, or the case of establishing boundaries in artistic freedom of expression. Every case shall be assessed individually. This should be remembered not only by the tattoo authors but also sportsmen, artists having or planning to have a tattoo as well as producers of films, series, video games and advertisements.