From Ars Technica:
There’s a tattoo as a design, and then there’s that same tattoo after it’s inked on the human body. Tattoo artists often copyright their tattoos. But does that copyright stick once the image is inked on the human body?
So far, no US court has ruled that it does, despite several lawsuits on the topic that have settled out of court or have been dropped. But barring a settlement, we might soon get our first ruling on the topic, and we have video games to thank.
Tattoo artists are suing the makers of the highly popular NBA 2K game series for the allegedly unauthorized use of their tattoos as they appear on popular players like LeBron James, Kobe Bryant, Kenyon Martin, DeAndre Jordan and others. In short, Solid Oak Sketches says that Take-Two Interactive Software is infringing its copyrighted works because the game shows the players with their real-world inked tattoos that Solid Oak Sketches has copyrighted.
In response, Take-Two says (PDF) Solid Oak Sketches is seeking “to hinder the ability to depict people as they appear in real life. Solid Oak is not an aggrieved artist—it is an opportunist.”
. . . .
US copyright law protects “original works of authorship fixed in any tangible medium of expression” that “is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”
Solid Oak Sketches claims the flesh constitutes the fixed medium.
“The copyrighted tattoo designs are imprinted permanently upon the skin of humans, clearly stable and able to be perceived for much more than a transitory duration,” Solid Oak Sketches argues.
. . . .
Take-Two argues that Solid Oak Sketches posits an absurd argument and claimed as much in a legal filing:
In essence, Solid Oak argues that these public figures must seek its permission every time they appear in public, film, or photographs and that those that create new works depicting the players as they actually appear (with their Tattoos) should be enjoined and pay damages to Solid Oak.
What’s more, even if the tattoos are copyrightable, Take-Two argued that it has a fair-use right to show the players with their tattoos, which are not a prominent feature of the video game.
. . . .
Perhaps the most famous case involved the tattoo inked by Victor Whitmill on Mike Tyson’s face. Whitmill sued Warner Brothers in a bid to block the tattoo from appearing on a character played by Ed Helms in the movie Hangover Part II. Whitmill had sought a court order to prevent the movie from showing in 2011. The film went on as planned, and the parties settled out of court.
Before the case was settled (but during an open-court session), US District Judge Catherine Perry of Missouri said, “Of course tattoos can be copyrighted. I don’t think there is any reasonable dispute about that.”
. . . .
[Copyright scholar David] Nimmer [argued] that if tattoos were subject to copyright, then the rights holder could sue somebody to block it from being removed.
The tattoo qualifies as an original “work of visual art” that may gain “recognized stature,” with the result that a court may enjoin its destruction. See 17 U.S.C. § 106A(a)(3)(B). After a court invokes that provision to bar him from removing his tattoo, Mr. Tyson literally may not show his own face to the world; that is, he will be required to keep Mr. Whitmill’s handiwork spread across his face, regardless of his own desires. Copyright law thereby becomes the instrument to impose, almost literally, a badge of involuntary servitude, akin to the mark with which ranchers brand the cattle they own.
Plenty of ink
Link to the rest at Ars Technica
PG says don’t get a tattoo of Mickey Mouse. Your body will be Exhibit A.
Seems like we need a common sense ruling here:
1. If the tattoo is something that the customer (the person getting the tattoo) sketched up themself and the tattoo artist is only applying it to their skin, the customer retains the copyright.
2. If the tattoo is a collaboration based on an idea that the customer has and works with the tattoo artist to get a final design, which is then tatooed onto their skin, it’s work for hire and the customer retains the copyright.
3. If the design is something wholly original, developed only by the tattoo artist, but was designed specifically for the customer and paid for by them (the tattoo artist can charge one fee for the tattoo and a second or higher fee for the design of the tattoo), the tattoo is work for hire and the copyright belongs to the customer.
4. If the customer picks an existing design (like out of a tattoo book) which the tattoo artist created all on their own, the copyright remains with the artist, but tattooing it on the person’s body grants an unlimited use license which includes any reproduction of that tattoo *as part of the person’s body*. This includes the customer being able to include the tattoo as part of their own personal image which they may license others to reproduce, but only, again, *as part of their body*. (Meaning that in this video game example, the player would have the right to let the game maker put it on the player’s digital self, but not necessarily to make it a separate design to apply to any player through character customization.)
5. If the person wants a design of someone else’s copyrighted material tattooed on them (such as the Nike swoosh), neither party owns the copyright. (It would remain with, in this example, Nike, and Nike could decide whether they wanted to sue the customer if the customer started using the image in a way Nike was unhappy with.)
6. If the tattoo is an original design based on someone else’s copyrighted material (such as an image of Mickey Mouse in BDSM gear or something), whichever of scenarios 1 – 5 most closely applies is what applies. (This is the only scenario where I could see reason for a legal determination on a case-by-case basis to be needed.)
Seems pretty simple to me. (Note, I’m not trying to say this is what the law says. I’m saying that if the law doesn’t say this, it’s what it should say because this would seem to be the most reasonable course.)
I think it is the artwork design that is copyrighted not the tattoo. Wearing the tattooed skin is not at issue. Other people capitalizing on someone else’s copyrighted work as their unique design … seems the matter.
Once the tattoo is on someone’s body, every time he moves the tattoo is transformed. Fair use, no?
Not unless copyright for images on clothing, flags, or blankets can never be enforced.
Besides, fair use (which is an argument used in court) requires substantial transformation with some kind of artistic merit.
I’ll bet licensing depictions of themselves in video games is pretty lucrative for athletes. If I were them, I would start drawing up contracts with any tattoo artist that the ink is a work-for-hire, and they cannot restrain anyone [the athletes licensed their image to] from depicting them with that tattoo.
Sorry, once you’ve sold your design to a person, and is inked on their body, it is no longer your design, and now part of their protected image. There is no possible way to ink something on someone’s body, and not simultaneously give them the right to use it the way they use the rest of their body, because its now their body. Its part of their likeness, which they have a right to sell to video game designers, in context with their own likeness.
This seems the most probable outcome. Art that has been incorporated into a likeness becomes subject to fair use or is subsumed by the right to one’s own likeness so long as the art is depicted in the context of their likeness. If nothing else, the location of the tattoo was selected by the athlete, not the artist.
I’m not a lawyer, but as a multi-copyright holder, my personal reaction is that a tattoo design should be copyright-able in terms of being copied (reproduced) but not in terms of the person being able to show his/her own skin.
As for an actor portraying a person with a tattoo, that would involve reproduction and would therefore (in my scenario) require permission of the copyright owner. Otherwise, an original tattoo should be commissioned.
Of course the idea of a videogame depicting artistic renditions of real people (with their permission, I presume) presents another issue. In my personal opinion, an incidental depiction in which the tattoos are not a major element should be fair use, but if the tattoo is prominently displayed, it should require permission or be replaced (easily done in this context) with an original work.
I’m open to changing my mind, however, in the face of cogent arguments to the contrary. Glad I’m not the judge in this case!
No matter how perfect the artist, the skin will take the tattoo a little differently, making it copyrightable.
But the tattoo was a work-for-hire, the copyright holder of that artwork is the buyer. So if an owner of a piece of artwork wishes to destroy it, it’s their choice.
That is a very interesting theory. If it obtains, then Solid Oak Sketches has no standing to sue and a motion to dismiss should be granted.
Have any case law to support this theory? ‘Cause I think it’s a winner if you do.
Being a libertarian, I suddenly feel tempted to get a tattoo of Mickey Mouse on my backside.
So, would Disney go after you or the tattoo artist? Go for it.
Mostly, I just want to moon the American (in)justice system.
I find this sort of odd, because if you purchase a tattoo, don’t you own it?
It you purchase a book do you own the copyright to that?
If you buy a painting, you own it, right?
So the problem would be one of reproduction. The owner of the painting or tattoo can display it but not reproduce it. In which case, if someone takes a picture of you displaying your painting, in what manner are they allowed to use that picture without triggering copyright infringement?
Suppose you were famous and had a very nice house, and you purchased a painting and displayed it in a room. Then, since people want to see the inside of your home (think architectural digest) you digitize the interior of your home and sell that as a home tour. Have you triggered copyright infringement?
actually, the painter of the painting owns all rights except
resale and I htink, not sure, exhibition. All rights might include printing cards of painting, making tattoo of painting, recording an audio about how painting was made, using painting as a feature in a film in order to makemoney.
alo, just wondering, I know some graphic artists who copyright and sell/licens their designs for tattoos and biker tanks for instance… I think the artist owns the copyright, not the tattooee or rider.
Thats an interesting question about AD. I would think if the image iis in background or at angle, not an issue. But if full face and
prominent, esp without attribution, maybe…
depending on artist’s snowflakeness quotient
I am skeptical of infringement. I’ve routinely published (as news) photos of famous paintings or sculptures, particularly the ones in museums or on the street. When the art in question was news, we posted pictures of them. The paper has a lawyer on staff and we had seminars on rights issues several times. This instance never came up; honestly it sounds insane.
“Architectural Digest” should be in the clear with an in-context photo of the art on display, whether in a museum or someone’s house. If we or they were to make posters of the art itself and sell it, that could plausibly trigger infringement, but that’s not what’s happening at all.
I must be missing something because I do not see a similarity at all between photographing or drawing a piece of work as an object and reproducing the art as art. If Disney claimed infringement on tattoo artists who ink the likeness of Mickey on anybody’s body, I could see that. That would make sense.
But if someone is wearing that tattoo, it would make no sense for Disney to claim that the person can’t be accurately depicted. Now I’m picturing them acting like the muttawa, forbidding the tattoo wearers from exposing their flesh, lest anyone photograph them 😀
museums ask for prior agreement to run images out of their collections.
art in the street, I have no idea.
Working for a news org with a lawyer on staff vetting
you’re allowed to print, is different in certain ways than
independent artists, authors, gamers etc taking others’ artworks for commerce for themselves.
I d also mention so others are informed… news blogs,
online political aggregates, just about anything online using both the text and photos, need to have AP permissions for instance, or whatever the big greedy joint is that has squatted on jillions of images as
an ‘archive… for this reason, better to ask first, if online especially…
There are squads of lawyers, some out of cali, who do nothing but take photogs works and painters works and cruise the internet for use without permission, and send demand letters starting at about 6k. The elecrontic media foundation has an excellent course on what to and what not to use, and generally advises that breaking photo copyrights, image coyrights, etc, is serious and you’ll pay through the nose after the
demand letter.
The world is very large, there are many laws too that apply
across borders depending on what one is wanting to
take/bring
Its a serious set of issues, and that;s why some have studied
for three or more years, taken hard tests, spent hundreds
of thouands of dollars to become IP lawyers… there’s WAY
more than enough work to go around in that sector, mainly because many people blow off legal, or think it is no big thing.
It’s that old saying, even if you win you lose, if you get sued, unless you have money to burn