6/9/2019 Before The Ink Dries: Copyright Law & Tattoos | legalzoom.

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Before The Ink Dries: Copyright Law

& Tattoos
by Lisa C. Johnson, Esq.
Freelance writer

More and more Americans are getting tattoos. In what is believed to have
been a first in the history of the Miss America Pageant according to
Kansas.com, Miss Kansas contestant Theresa Vail proudly displayed her
body ink this past September. A 2012 Harris Interactive poll states that
one in five U.S. adults have tattoos. Given the numbers, probably more
than a few of you reading this article have adorned yourself with ink as
well.

A Tattoo Renaissance

An exhibit at Honolulu Museum of Art in early 2013 declared tattooing as

art. In describing the exhibit, the museum stated that the “lines between
ink on skin and paint on canvas or pencil on paper have been blurred with
tattoo artists reaching the skill level of other artists.”

This high regard for tattoos as art continues to bloom. In late 2013, the
Milwaukee Art Museum presented its first tattoo exhibit called “Tattoo: Flash Art of
Amund Dietzel.” During what is considered by many to be a “renaissance
in tattooing,” the exhibit celebrated a century since Dietzel first arrived in
Milwaukee. Not long after his arrival, he had become Milwaukee's premier
tattoo artist, inking World War I and II sailors and Marines before they
headed off to battle.
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Ownership of Tattoos

If a tattoo is art, then the question becomes, who owns it. The person
who is wearing the art is not the one who created it. While humans often
adorn themselves with jewelry and ink, wearing a tattoo is different from
wearing a bracelet or ring. A bracelet
What Are Derivative
is easily removed. A tattoo
Video Games and
is a
How to Avoid
permanent and fixed mark on theCopyright
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remove a tattoo and some can never be fully removed. Infringement

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Looking at the case of Whitmill v. Warner Brothers may shed some light
on the ownership of tattoos. According to the complaint, on February 10,
2003, Mike Tyson had a tribal tattoo applied to the left side of his face
around his eye. The tattoo was created by S. Victor Whitmill, who did
business as Paradox-Studio of Dermagraphics. On the same day, Tyson
signed a release stating “that all artwork, sketches and drawings related
to [his] tattoo and any photographs of [his] tattoo are property of
Paradox-Studio of Dermagraphics.”

On April 19, 2011 Whitmill registered his copyright in the tribal tattoo with
the U.S. Copyright Office for artwork on a 3-D object with the date of first
publication being February 10, 2003. In between these two dates, Mike
Tyson appeared in the movie The Hangover in 2009. The sequel to the
movie was promoted by showing pictures of another actor with Tyson's
tattoo. Because Whitmill did not give his permission for use of the tattoo
on another actor, he sued Warner Brothers in Missouri Federal Court for
copyright infringement on April 28, 2011.

Based on many news reports at the time, the movie was released and the
case was quietly settled. Because the case never went to trial, there was
no decision.

Copyright and Tattoos: The Law is Murky

Until today, there have been no federal court decisions in the area of
tattoos and copyright. High profile cases, like Whitmill's, have been
settled out of court, leaving many questions unanswered.

Attorney and professor Yolanda M. King examined the issue of ambiguity

in the legal protection of tattoos and the negative impact on tattoo
artists and their clients in an article for Oregon Law Review called “The
Challenges ‘Facing' Copyright Protection for Tattoos.” She feels that
tattoos meet the requirements for copyright protection based on
Related Articles and fixation in a tangible medium of expression,” and that
“originality
tattoo artists should more vigorously defend their rights so the courts
can weigh in on the issue.

Some professional organizations, like the National Football League, aren't

taking any chances. According to a recent Businessweek.com article, NFL
Players Association representative George Atallah said, “All we are doing
What Are Derivative Video Games and How to Avoid
is proactively
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telling players, ‘Yes,Copyright
we know you love your tattoo artists,
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but regardless of whether or not Infringement
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Infringement
or not there are legal merits to the lawsuits that we've seen, just protect

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yourself.'” NFL player Ricky Williams has already been sued by a tattoo
artist.

View From a Tattoo Artist

Tattoo artist and owner of NEPA Tattoo Club in Pittston, PA, Nick Malasto,
says the biggest issue for him is when the artist is not given credit for
their work. That lack of credit is what he sees as fueling an increase in
lawsuits now and in the future. If he has a celebrity client come in, he lets
them know upfront that payment will be expected if the tattoo is going
to be prominent in the context of work that they are doing.

Most people getting tattoos are not celebrities, just regular people who
want an indelible stamp of individuality. If you're concerned about
copyright issues and who owns the tattoo, you may want to discuss this
with your artist before the ink is dry.

You can also discuss your rights with an attorney through the LegalZoom
business legal plan. For further information on copyright registration and
LegalZoom's copyright service, click here

Make sure your work is protected

START MY REGISTRATION

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