Tattoo copyright conundra

Intellectual property law in many countries (e.g. US and UK) asserts that when an artist creates an original artwork, he or she automatically owns the copyright. But what if you happen to be, say, a tattoo artist? What’s the legal position when the tattoo – which is now permanently attached to the person who acted as its artistic substrate – walks out of your studio and is displayed to the wider world, without your permission? Have you the artist ‘agreed’, by default, to its public exhibition – in other words to licence its re-use? We now enter the enigmatic world of ‘Implied Licences’. (An example of an ‘Implied Licence’ is the so-called ‘Browse-Wrap Agreement’ – the kind that says something along the lines of : “By browsing this website you agree to be bound by the following terms and conditions of use . . .”)

The implications for tattooists are discussed in a paper for the current issue (Vol. 31, Issue 2) of The Cardozo Arts & Entertainment Law Journal where author Craig P. Bloom outlines the legal position in ‘Hangover Effect: May I See Your Tattoo, Please?’

“Hanging over every tattooed individual is the potential for a copyright infringement lawsuit. Yet, an implied license remains a powerful shield that protects a tattoo holder from such actions.“

For some experts, explains the author, take the position that :

“By virtue of the unique nature of a tattoo, which is permanently affixed to and displayed on a person’s skin, a tattoo holder has an implied license to use, display and exploit the tattoo.”

Others are not so convinced : e.g. copyright authority David Nimmer (author of Copyright in the Dead Sea Scrolls: Originality and Authorship, (Hous. L. Rev. 1, 2001) who posits (in Whitmill v. Warner Bros, 2011)

“… human flesh cannot serve as the ‘medium of expression’ that Congress intended to embody legally protectible authorship.”

Returning to Bloom, the author concludes that the contentious issue of tattoo copyright remains to this date, (in the US at least) quite ill-defined :

“… the issue of whether tattoos can be copyrighted remains unsettled and novel in the sense that no judicial decision has been rendered on the merits.”

Also see : Tattoo disruption avoidance and Body: Search for Deviants and Professorial Product Placement.

Bonus : (old) joke : Seen on tattooist’s studio window “TATTOOS : WHILE YOU WAIT”

Credit : The retouched public domain picture above is courtesy of the FDA ‘Think Before You Ink’