Copyright Protection and Rights Clearance for Tattoos
By Justin M. Jacobson, Esq.

It is important for individuals and businesses in the entertainment and video game industries to be aware of the licensing requirements related to the use, display and reproduction of an entertainer, celebrity, athlete, or other social media influencer’s tattoos and other “body art.” In fact, it is established that the creator of a tattoo design, usually the tattoo artist, is the owner of the specific tattoo design, even though it is applied to another individual’s body. As a result of this little explored legal doctrine, there has been several past public instances in professional sports and video game development industries involving the “unauthorized” public display of a tattoo. For example, the movie production company for The Hangover 2 faced a copyright issue as a result of the film replicating and displaying professional boxer Mike Tyson’s “tribal” tattoo on an actor in the motion picture. Similarly, there has been series of past issues related to usage, display, and digitization of a professional athletes’ identifiable tattoos, including the inclusion of original tattoo designs on NFL, NBA and WWE in-game video game characters. For example, the game developer of a UFC video game faced a copyright dispute due to the use and replication of a UFC fighter’s tattoos in the game. Related to this was a case filed by a tattoo artist against the video game developer for NBA 2K, Take Two Interactive due to the usage and display of a variety of NBA players’ original tattoo artwork on their in-game characters. As a result of these encounters, many entertainment and video game companies began to adopt new policies targeted at proper copyright clearance for tattoo designs. For instance, NFL player Colin Kaepernick notably had “his tattoos featured” in a previous Madden football video game after he had acquired and “received [proper] permission” from the tattoo artist to permit such a digital reproduction. It is clear from the variety of legal issues encountered by entertainment and gaming companies that proper clearance and permission from the tattoo’s copyright owner(s) is crucial and should be a standard practice for all tattooed entertainers, athletes and other celebrity talent to incorporate

Can you Copyright a Tattoo? Copyright Protection for Tattoos and Tattoo Designs

According to 17 U.S.C. § 102, copyright protection exists “in original works of authorship fixed in any tangible medium of expression [… ] from which they can be perceived, reproduced, or otherwise communicated.” This provides copyright protection for any “original work of authorship” that can be perceived. This means that this legal protection applies to a finished tattoo design because the image (tattoo design) can be viewed on an individual’s exposed skin as well as reproduced in photographs and digitally in a video game. Since in many cases, a tattoo artist is creating their own unique design, the creator’s work (finished tattoos) is generally protected by copyright law. This means that the copyright owner, the tattoo artist, possesses several exclusive rights in the tattoo design. (17 U.S.C. § 106) In particular, the rights are provided to the tattoo artwork’s creator, not the individual that the tattoo is displayed on, which means that the owner (tattoo artist) has the right to make copies of the work (tattoo), distribute the work, publicly display the work, and make derivatives copies of the work. In this instance, a “derivative” work might be reproducing a tattoo in a film or in a computer game. (17 U.S.C. § 106(1)-(6))

Tattoo Rights Usage and Tattoo Rights Release Forms

Since the creator of the work is its owner, it is advisable for an individual purchasing a tattoo design to enter into a written document related to the rights and usages of the tattoo design. This could be in the form of an exclusive or non-exclusive license from the designer to display, digitize or otherwise monetize the tattoo design. Alternatively, the agreement could be a full assignment of all the rights in the tattoo that the tattoo artist possess in the work or even simply providing the purchaser with a limited license that grants them the right to reproduce or otherwise utilize the tattoo for their own purposes, including in digital and non-digital mediums for both commercial and promotional ones. A rights release form should also address and include a waiver of the tattoo creator’s “moral rights” in the tattoo design. This practice is crucial as the failure by a professional athlete, musician or other talent to obtain such written documentation from the tattoo artist could cause the individual to be liable for copyright infringement if they later reproduce or make other uses of the work without the prior authorization and permission from the tattoo design’s owner, the tattoo artist. Finally, as a result of the aforementioned publicized issues, many entertainment, film, television and video game production companies are mandating that all tattooed actors, athletes and other entertainment talent provide appropriate authorization forms and clearances.

While it may seem peculiar for a celebrity or athlete purchasing a tattoo to also provide the tattoo designer with a release form, in light of the previous litigation and the additional creative mediums that original tattoos are now being reproduced in, including as NFTs and other digital artwork pieces, it is wise and is becoming the customary among athletes, celebrities and other notable entertainment influencers.

This article is not intended as legal advice, as an attorney specializing in the field should be consulted.

© 2022 Justin Jacobson Law, P.C.