In the previous Article we discussed if and how Tattoos can be protected under Intellectual Property. In this Article, we shall look at the different kind of claims that an IP holder can take for defending his right in the tattoo.

In order to establish a prima facie case of infringement of one’s right of publicity, a plaintiff must show

• ownership of the recognizable identity at issue validity
• unauthorized third party use of the identity in a way that is likely to cause damage to the commercial value of the celebrity’s identity infringement.

A possible cause of action might be for the infringement of the body artist’s exclusive right to prepare derivative works (sometimes called the adaptation right), or for violation of her moral rights. A few cases have held that substantial modification of a copyrighted work, without permission of the copyright owner, is a violation of the adaptation right. Under a portion of the USA Copyright Act (hereinafter referred to as “Act“) known as the Visual Artists Rights Act (VARA), certain “works of visual art” may qualify for protection against distortion and other wrongs, even if the artist no longer owns the exclusive right to prepare derivative works. Section 101 of the Act defines a “work of visual art” to include a painting, drawing, print, or sculpture, existing in a single copy or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author. Section 101 of the Act, however, goes on to exclude from the definition of a “work of visual art” several types of items, including “any poster, map, globe, chart, technical drawing, diagram, model, applied art,” or any work made for hire. The Act does not define any of these terms other than works made for hire, although under the common meanings of the terms, a tattoo or makeup design would not appear to qualify as a poster, diagram, or model although it might be applied on a model. Assuming that the human body is not merely a “utilitarian object,” this limitation as well should pose no problem to the assertion of moral rights in body art. The work for hire doctrine, however, might pose a more serious obstacle to the assertion of moral rights, depending on the facts of the employment relationship.

Assuming that a particular tattoo or design qualifies as a work of visual art, VARA confers upon the author a variety of moral rights, including rights to attribution and integrity. First, the author has a right to claim authorship of the work and to prevent the use of her name as the author of a work which she did not create. Second, the author has a right to prevent the use of her name as the author of a work that has been distorted, mutilated, or otherwise modified in a manner that would be prejudicial to her honor or reputation. Third, the author has a right to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right. These rights are subject to a variety of exceptions, one of which we discuss below, and may be waived in a writing signed by the author. With respect to the integrity right, as noted above, the artist has a claim against (1) intentional modifications that prejudice her honor or reputation, and (2) intentional or grossly negligent destruction of works of recognized stature. In determining whether a particular modification prejudices the artist’s honor or reputation, courts have relied upon expert testimony to determine whether the artist has a significant reputation within the artistic community. Another, obstacle to the assertion of either adaptation rights or moral rights is that some modifications might be privileged under the fair use doctrine. the appropriate remedies for the infringement of copyrights or moral rights in body art.

The Act specifies that a court may award the aggrieved copyright owner actual damages and any additional profits of the infringer, or in the alternative, statutory damages. Actual damages could include either lost profits or lost royalties. In the typical case involving body art, however, it might be difficult for the plaintiff (either an artist whose work has been incorporated without her permission into a work of body art, or a body artist whose work has been reproduced or adapted without her permission) to prove substantial lost profits or unless she charges very large fees substantial lost royalties attributable to the infringement. Alternatively, to recover an award of the defendant’s profits, the plaintiff must prove some reasonable nexus between those profits and the act of infringement.

In the case of Whitmill v. Warner Bros. Entm’t, Inc. (2011) , which was related to the film THE HANGOVER II, and the court decided against the tattoo artist. The first film in the series featured Mike Tyson and his distinctive facial tattoo. The second film “features a character with a similar tattoo” obtained after a night of debauchery. Whitmill, the artist who constructed Mike Tyson’s tattoo, claimed that the tattoo is “one of the most distinctive tattoos in the nation,” and alleged that the tattoo in the movie was “a virtually exact reproduction.” The court found no reasonable dispute regarding the copyrightability of tattoos, noting that the copyright did not apply to Tyson’s face. Likewise, the use of Tyson’s face was not being restricted, nor was Tyson being restricted in removing or changing the tattoo. The claim was limited to the copyrightability of the tattoo itself and the design itself. Judge Perry also called the contract/release “totally consistent and appropriate under copyright law.” The court also noted that noted that Warner Brothers’ use of the tattoo did not comment on the artist’s work or have any critical bearing on the original composition. Change to the tattoo and parody were both lacking, and the tattoo as a plot device could have been replaced with any other tattoo.

CONCLUSION

As tattoos grow increasingly more mainstream, it becomes clear that they make up an area of intellectual property that has, until now, been largely ignored. The law of tattoo copyrights has not yet caught up with the increased popularity and prevalence of tattoos, resulting in a number of problems concerning particularly the entertainment and sports industries. The few tattoo copyright infringement claims that have been brought in the last decade all settled before any definitive ruling on the subject could be concluded.

Furthermore, tattoos do not fit within the existing statutory framework of copyrights due to the fixation of these designs on human skin, a unique tangible medium which triggers issues of autonomy and dignity. While a published court decision finally acknowledging that tattoos are copyrightable and outlining some guidelines would be helpful, it is unlikely that a court will get the opportunity to make such a ruling, as the parties are settling in these cases before reaching trial. As we have already noted there has not yet been reached any definitive court ruling which could give a solution to this ongoing legal battle. In the majority of the cases, the parts have settled out of court. Consequently, the court did not have the chance to clearly assess the subject. However, the court clearly shows its intention to examine thoroughly the subject and seems to see the possibility of tattoo artists owning copyright to a tattoo.