Is Tattoo an Object Protected by Copyright?

Author: Inga Lukauskiene, Associated Partner, Attorney-at-law, Patent Attorney at METIDA, Court Mediator; Ausrine Sakalauskaite, junior lawyer at METIDA

taisonasFor a long time it has been believed that the art works created by tattoo artists do not fall within protection of intellectual property. As tattoos have become increasingly popular, it seems that the situation has started to change gradually. Several years ago the introduction of the exhibition of Honolulu Art Museum stated that tattooing is art. 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. (http://honolulumuseum.org/art/exhibitions/12749-tattoo_honolulu?_ga=1.171422053.439849293.1454420899). If tattoos are works of art, the question is whether they may be protected as the objects of intellectual property?

Although many people consider tattoo designs original works of art, it is highly questionable if we would succeed in finding many countries legislation of which expressly includes tattoos in the list of objects protected by intellectual property law. So far, there is no case-law concerning intellectual property protection for tattoos. Nevertheless, the number of disputes over infringements of the copyright of tattoo artists is steadily increasing.

The viewers of the comedy The Hangover Part II, 2011 cheerfully laughed at one of the characters of the movie who woke up in Bangkok with a large tattoo on his face. However, nobody suspected that the film studio Warner Bros (Warner Bros. Entertainment, Inc.) had troubles because of this “detail”. Turns out that the tattoo was an identical reproduction of Mike Tysons’ tattoo which was created specifically for this legendary American boxer. According to the tattoo artist S. Victor Whitmill, taking into account the fact that the above tattoo was his unique work intended for the particular person, by using it Warner Bros violated his copyright.

On 19 April 2011, S. V. Whitmill registered the above mentioned tattoo design in the U.S. Copyright Office as a work of art on a 3-D object specifying that the first date of publication of this work of art was on 10 February 2003 (when S. Victor Whitmill tattooed the face of Mike Tyson). Warner Bros used the above tattoo in the comedy The Hangover Part II and its advertising material without the consent of S. V. Whitmill. Consequently, on 28 April 2011, the tattoo artist sued Warner Bros because of his copyright infringement.

In order to avoid lengthy litigation and possible losses, the film studio was willing digitally alter the film to substitute a different tattoo, but since the parties have reached an agreement on 17 of June, such actions weren’t necessary after all. The movie was released as it was and no court judgement that could become a significant precedent has been delivered.

Just like in the above case of S. V. Whitmill v. Warner Bros, well-known disputes concerning tattoos are still resolved by peaceful settlements between the parties; thus, we will have to wait for the court’s opinion on the matter. The original works of art, which in any objective form are expressed as a result of creative activities, falls under protection of copyright laws. In the light of the fact that, first of all, the tattoo is a painting, it may be concluded that tattoos just like other works of visual art should be protected as objects of copyright if it indeed is original. This implies that, in addition to other economic rights, the person who develops an original tattoo design, as an author, is entitled to prohibit reproduction of such art work in any form or manner. But what about the exclusive right of the author to prohibit the public display of the original work or its reproductions? As there is no clear case-law, this particular question – just like many others regarding tattoos as copyright objects – remains unanswered.

 

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