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Copyright in tattoos

Can copyright extend to the human body?

My slides from my presentation last week exploring this question, up on the Gikii 2 website, got boing boinged. So here is a post about some of the issues that come up, including those that came up in the BoingBoing forum.

Tattoos and “works for hire”

US copyright law divides “works for hire” into two categories:

(1)works made within an employer/employee relationship, and
(2)works “specially ordered or commissioned for use as[,]” among others, “a contribution to a collective work”.
See 17 U.S.C. 101 “work made for hire”

Works for hire uniquely vest with the employer or commissioner of the work rather than with the creator—the creator has no copyright interest.

Out of the listed categories, I think only “a contribution to a collective work” argument would work for tattoos. Something like doing one of Enigma’s puzzle pieces. Or perhaps full body work. Arguments could also be made that The other categories are things like a motion picture, or for teaching.

Even if you could fit a tattoo as a “work for hire” either as a collective work or under one of the other categories, one of the requirements is that you written instrument saying that it is a “work for hire”. As tattoo artists don’t (AFAIK) routinely deal with copyright, they aren’t likely to have had a written instrument covering this.

As to employer/employee relationship, this is highly unlikely. In CCNV v Reid, the US Supreme Court listed some factors for finding this relationship, including:

Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.
490 U.S. 730, 751-52

I think based on the typical scenario of getting a tattoo that it is highly unlikely that there would be an employer/employee relationship here.

Tattoo parlour owner as copyright holder

Speaking of the above factors, I should point out that if the tattoo artist was creating copyrighted material, that material could actually be owned by the parlour under the same set of factors outlined above for finding an employer/employee relationship. If an artist is an employee, the works she or he creates in their scope of employment would be the employer’s copyright.

Reed v. Wallace

The case that I use to illustrate some of the problems is Matthew Reed v. Nike, Inc., Rasheed Wallace, and Weiden + Kennedy. The complaint is available here, and the cite is Case No: CV05-198 (D. Ore. 10 February 2005). It settled out of court.

The complaint was over the use of the tattoo in a Nike commercial. Wallace had Reed draw up, and tattoo on him, an Egyptian family tattoo on his upper arm. Fast forward a few years, and the tattoo is centre stage in a Nike commercial. Using computer animation, they erased the tattoo from his arm. As Wallace was explaining the meaning of the tattoo, it was slowly being filled in. All in all a neat commercial.

Reed argues in the complaint for what I see as an implied licence for most typical uses of a tattoo — including in this case display of the tattoo at NBA games. However, predominately featuring the work in a commercial was beyond what Reed felt was within the scope of any typical use and sued.

Note that because US citizens must register their works before the infringement occurs to ask for statutory damages, he doesn’t ask for these in the complaint. He did have to register to sue — it’s a requirement in the United States.

Moral rights

As mentioned by Danny, one of the areas I do talk about is possible conflicts between moral rights and tattoos. Especially interesting is the right to object to derogatory treatment — could getting a coverup tattoo, or touching up a bad tat be derogatory treatment? Could the original author object to you doing this?

As Caroline Wilson pointed out after the talk, what happens if you gain weight or don’t take care of the tat? Is this objectionable derogatory treatment?

Also, what about the right of attribution — to be named the author of the work? One wrinkle would be that some tattoos are collected into museums by preserving the skin after death. Yokohama Tattoo Museum and the Tokyo Medical School are rumoured to have collections of actual tattooed skin.

I’ll be posting more about the talk and the paper throughout the week.

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