Copyright for Tattoos

Copyright for Tattoos

An article published in the Notre Dame Law Review titled “Copyright Protection for Tattoos: Are Tattoos Copies?” asks whether tattoos can be protected under copyright law. In order for works to be given such protection, they must meet two requirements: fixation and originality. The work, whether traditional or electronic, must be fixed for “more than transitory duration”; and it must be, at least in some small part, an original creation. These requirements aren’t hard to meet, but in practice it has been difficult to determine the legality of several aspects of the tattooing process.

When Are Tattoos Copies? was written in 2014, no case concerning tattoos and copyrights had gone to court – out of the three cases that had come up, two were settled out of court and one was dismissed with prejudice for failure to prosecute. Author Minahan expected that the main issues regarding copyright would concern the ownership of a tattoo. To reproduce an exact copy of art inked into someone’s skin, Minahan proposes, you would have to reproduce every aspect of the work – mainly, the medium on which the art rests. And since no one is about to submit a human body to be stored in the Library of Congress, tattoos can’t be copied. The drawings and preliminary sketches can be copied, and therefore copyrighted, but those aren’t nearly as public as a tattoo appearing on a celebrity or professional athlete.

Are Tattoos Copies? also discussed the issue of ownership. If a tattoo could be copyrighted, who would own it? The artist is responsible for the physical inking and creation of the piece, but if the artist owns a permanent part of someone’s body, they could dictate what sort of public appearances they could make, and thus influence the amount of income someone makes. Because of these two reasons, Minahan argues, tattoos should not be protected under copyright law.

That urging was not taken, and in the decade since that article’s writing the copyright question has come up with increasing frequency. Usually it concerns the use of a celebrity’s likeness in media (movies, television, video games). Most of the cases are not about companies like Disney trying to receive compensation for the use of their images – it’s generally individual tattoo artists hoping to receive royalties or payments for their work being featured or recreated in those media. Defendants in these cases often rely on fair use law, which has caused cases to be ruled both in favor of Plaintiffs and Defendants just this past year; Cramer v. Netflix (2023, discussed below) states that “[t]he determination of fair use is an undeniably fact intensive context specific inquiry.”

In Hayden v. 2k Games (2022), the court debated the “publication” aspect of copyright law. The plaintiff filed six copyrights for tattoos inked on various NBA players after seeing them recreated in multiple NBA 2k games. Defendants argued that several of the copyrights were filed past the time limit: copyrights should be created within 5 years of publication. Because publication occurs when the act of distributing copies does not “require[…] additional action by the offeror,” defendants argued that the tattoos were published at the time they were considered complete, while the plaintiff argued that tattoos were, in fact, never published. The court eventually sided with the plaintiff, saying that he owned the copyrights.

Cramer v. Netflix Inc. (2023), however, decided against the tattoo artist. Cramer inked a tattoo on her husband in 2020 with Joe Exotic’s face featured above a roll of toilet paper that read “quarantine 2020”. She was hoping it would bring traffic and attention to her tattoo store that had just closed, and she in fact was able to reopen the store with the success of this tattoo. Netflix then featured the picture in the first episode of Season 2 of Tiger King; the plaintiff asked Netflix to cease & desist or pay a settlement. When deciding the case, the court relied heavily on a recent copyright case: Andy Warhol Foundation for the Visual Arts v. Goldsmith (2023), which set new guidelines for arguing fair use: one needs to look at the purpose of a work, not just its aesthetic character, to determine whether the work is transformative. In other words, does the new work add something new to the original piece, especially a new purpose or message? If not, the work will infringe on the original’s copyright. The court found that Netflix used the plaintiff’s tattoo for a much different purpose than the original work – Cramer first created the tattoo to bring attention and funds to her tattoo store, while Netflix featured the tattoo to show just how far the Tiger King craze spread. Defendants were granted their motion to dismiss.

Other copyright issues are still in the courtroom, too. Sedlik v. Drachenberg (2023) has been in court since 2021. Defendant (popularly known as Kat von D) traced a portrait plaintiff had created and tattooed a friend with it, later posting progress pictures, a finished picture, and a progress video on her social media accounts. The plaintiff sued for copyright infringement, but defendants argued that the tattoo was considered fair use because von D’s purpose in tattooing the portrait was transformative. The judge, however, stayed the case until Warhol was decided. Recently the parties brought forth motions to reconsider, which the judge granted in light of Warhol.

Courts have yet to rule consistently regarding the protection of tattoos under copyright law. Because fair use law is so context specific, it is unlikely that blanket statements will be made anytime soon about what is allowed to be done with tattoos once they’re finished.

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