Who Owns Your Tattoo?

Written By: Ashar Philson

Like every law student, I constantly apply the law to everything in my environment, from the warning signs posted on waterslides, to the video games my little brothers play. In fact, last weekend, I watched one brother beat the other in a game of NBA 2k. I wondered, what rights do the video game owners have over depicting an avatar version of an NBA player, including the tattoos on the NBA player’s body? What rights, if any, do the tattoo artist have over these digitized images of their tattoo work and can they legally ask for payment of such depiction? Since these tattoos are on the NBA players’ bodies, is it not believable that the players themselves have a right, too? Shouldn’t the players be able to determine who can publicize their identity and choose any characteristics related to their identity to be depicted?

The first issue addresses whether a tattoo is eligible for copyright protection. Such protection would give a tattoo artist the power to preclude others, like NBA players and video game companies, from reproducing, distributing, and displaying the protected tattoo. [1] Copyright protection applies to “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.” [2] Works of authorship include pictorial, graphic, and sculptural works. [3] It is clear that a tattoo falls within the category of pictorial, graphic, and sculptural works. Depending on the look of the tattoo, it may arguably be deemed an “original” work of art. A tattoo is “fixed in a tangible medium of expression” because it has been defined as “a mark, figure, design, or word intentionally fixed or placed on the skin”. [4] Therefore, a tattoo artist has the ability to copyright his or her own tattoo work that is placed on the bodies of others.

Generally, works of art protected under copyright require a license from the copyright owner or else they are subject to infringement. [5] A violation of any exclusive right of the copyright holder, such as reproduction, distribution, public performance, or display, constitutes copyright infringement. [6] For a successful infringement claim, a tattoo artist must prove the tattoo was derived or actually copied by the defendant, resulting in the alleged infringing work that has a substantial similarity to the plaintiff’s work. [7]

What rights or control are left to the NBA players in the depiction perceived by their avatar and within the public domain as a whole? Does the copyright protection go against the NBA player’s rights? The courts have not fully provided an opinion on this matter. This may be due to the fact that many cases facing this issue have settled out of court. [8] It has been suggested that the courts view tattoo application as an implied license for the subject to display the tattoo. [9] This interpretation seems reasonable since these artists know of the risk that their clients may choose to use their body and looks for commercial use. In addition, with advances in technology comes the need for an amendment to the copyright law. One solution may be to limit copyright protection to preclude works of art that are “fixed” on the body of another individual. This limitation will not only promote creativity but will prevent artists from having control over tattoos or modifications made on another person’s body to which that person may now feel is a part of their own identity.

[1] 17 USC § 106.

[2] 17 USC § 102.

[3] Id.

[4] Tattoo, Merriam Webster Inc., https://www.merriam-webster.com/dictionary/tattoo (https://perma.cc/4UXL-HS8H) (last visited Jan. 18, 2020).

[5] Managing Copyrights and Negotiating Agreements, Berkeley Library, https://www.lib.berkeley.edu/scholarly-communication/copyright/managing-copyrights (last visited Jan. 8, 2020).

[6] Definitions, Copyright.gov, https://www.copyright.gov/help/faq/faq-definitions.html (https://perma.cc/BNP9-S2MQ) (last visited Jan. 8, 2020).

[7] Solid Oak Sketches, LLC v. 2K Games, Inc., No. 16-CV-724-LTS-SDA, 2018 U.S. Dist. LEXIS 54721, at 4 (S.D.N.Y. Mar. 30, 2018).

[8] Katie Scholz, Copyright and Tattoos: Who owns your ink?, IPWatchdog (July 26, 2018), https://www.ipwatchdog.com/2018/07/26/copyright-tattoos-who-owns-your-ink/id=99500/ (https://perma.cc/ZUD4-JJPH).

[9] Id.