by Jenny Nomura, UMN Law Student, MJLST Managing Editor
A celebrity goes into a tattoo shop and gets an elaborate tattoo on her arm. The celebrity and her tattoo appear on TV and in magazines, and as a result, the tattoo becomes well-known. A director decides he wants to copy that tattoo for his new movie. He has an actress appear in the film with a copy of the signature tattoo. Not long after, the film company gets notice of a copyright infringement lawsuit filed against them, from the original tattoo artist. Similar situations are actually happening. Mike Tyson’s face tattoo artist sued Warner Bros. for copying his tattoo in “The Hangout Part 2.” Warner Bros. settled with the tattoo artist. Another tattoo artist, Christopher Escobedo, designed a large tattoo on a mixed martial arts fighter, Carlos Condit. Both the tattoo and the fighter appeared in a video game. Now Escobedo wants thousands of dollars for copyright infringement. Most people who get a tattoo never think about potential copyright issues, but these recent events might change that.
These situations leave us with a lot of uncertainties and questions. First of all, is there a copyright in a tattoo? It’s seems like it meets the basic definition of a copyright, but maybe just a thin copyright (most tattoos don’t have a lot of originality). Assuming there is a copyright, who owns the copyright: the wearer or the tattoo artist? Who can the owner, whoever he is, sue for copyright infringement? Can he or she sue other tattoo artists for violation of right of derivative works? Can he or she sue for violation of reproduction if another tattoo artist copies the original onto someone else? What about bringing a lawsuit against a film company for publicly displaying the tattoo? There are plenty of tattoos of copyrighted and trademarked materials, so could tattoo artists and wearers themselves be sued for infringement?
What can be done to avoid copyright infringement lawsuits? Assuming that the owner of the copyright is the tattoo artist, the potential-wearer could have the tattoo artist sign a release. It may cost more money to get the tattoo, but there’s no threat of a lawsuit. It has been argued that the best outcome would be if a court found an implied license. Sooner or later someone is going to refuse to settle and we will have a tattoo copyright infringement lawsuit and hopefully get some answers.