The Challenges 'Facing' Copyright Protection for Tattoos
34 Pages Posted: 18 Sep 2016
Date Written: 2013
This Article addresses the ambiguity regarding the legal protectability of tattoos and the negative impact such ambiguity has on the rights of tattoo artists and their clients/customers. Notwithstanding the lack of federal court decisions in this area of the law, this Article determines that tattoos meet the requirements of copyrightability in the United States — originality and fixation in a tangible medium of expression. This Article examines the challenges presented by providing copyright protection for tattoos. In particular, this Article responds to the expert testimony of Professor David Nimmer, the author of a treatise often cited in the field of copyright law, in Whitmill v. Warner Bros. Entertainment, Inc. The Whitmill case concerns the well-known, prominent tattoo on the face of former heavyweight boxing champion Michael Gerard “Mike” Tyson. In that case, Nimmer opined that tattoos are not copyrightable. While the district court excluded Nimmer’s testimony on the basis that it constituted legal opinion, he raised several objections to the copyrightability of tattoos. This Article not only challenges Nimmer’s conclusion, but also his underlying rationale. To date, no cases concerning the copyrightability of tattoos have gone to trial. However, the Whitmill case, which reached the preliminary injunction stage, and a handful of other copyright lawsuits have shed some light on how the courts might analyze the unique issues that arise in the determination of copyrightability of tattoos and the problems that flow from providing copyright protection to these creative works. This Article concludes with encouragement for tattoo artists to enforce their rights in their artwork in court. The filing of such lawsuits will likely lead to decisions that recognize the protectability of tattoos, which will remove tattoos from the fringes of the law into one of the categories of copyrightable subject matter, and remedy the harm to tattoo artists as a result of exploitation of their works. Such legal precedent will, in turn, empower more tattoo artists to regain control of their works in mass media.
Keywords: tattoos, copyright, Whitmill v. Warner Bros. Entertainment Inc., Mike Tyson, David Nimmer
JEL Classification: K3, K11
Suggested Citation: Suggested Citation