More and more Americans are getting tattoos. In what is believed to have been a first in the history of the Miss America Pageant according to Kansas.com, Miss Kansas contestant Theresa Vail proudly displayed her body ink this past September. A 2012 Harris Interactive poll states that one in five U.S. adults have tattoos. Given the numbers, probably more than a few of you reading this article have adorned yourself with ink as well.
A Tattoo Renaissance
An exhibit at Honolulu Museum of Art in early 2013 declared tattooing as art. In describing the exhibit, the museum stated that the “lines between ink on skin and paint on canvas or pencil on paper have been blurred with tattoo artists reaching the skill level of other artists.”
This high regard for tattoos as art continues to bloom. In late 2013, the Milwaukee Art Museum presented its first tattoo exhibit called “Tattoo: Flash Art of Amund Dietzel.” During what is considered by many to be a “renaissance in tattooing,” the exhibit celebrated a century since Dietzel first arrived in Milwaukee. Not long after his arrival, he had become Milwaukee's premier tattoo artist, inking World War I and II sailors and Marines before they headed off to battle.
Ownership of Tattoos
If a tattoo is art, then the question becomes, who owns it. The person who is wearing the art is not the one who created it. While humans often adorn themselves with jewelry and ink, wearing a tattoo is different from wearing a bracelet or ring. A bracelet is easily removed. A tattoo is a permanent and fixed mark on the skin. It takes extraordinary measures to remove a tattoo and some can never be fully removed.
Looking at the case of Whitmill v. Warner Brothers may shed some light on the ownership of tattoos. According to the complaint, on February 10, 2003, Mike Tyson had a tribal tattoo applied to the left side of his face around his eye. The tattoo was created by S. Victor Whitmill, who did business as Paradox-Studio of Dermagraphics. On the same day, Tyson signed a release stating “that all artwork, sketches and drawings related to [his] tattoo and any photographs of [his] tattoo are property of Paradox-Studio of Dermagraphics.”
On April 19, 2011 Whitmill registered his copyright in the tribal tattoo with the U.S. Copyright Office for artwork on a 3-D object with the date of first publication being February 10, 2003. In between these two dates, Mike Tyson appeared in the movie The Hangover in 2009. The sequel to the movie was promoted by showing pictures of another actor with Tyson's tattoo. Because Whitmill did not give his permission for use of the tattoo on another actor, he sued Warner Brothers in Missouri Federal Court for copyright infringement on April 28, 2011.
Based on many news reports at the time, the movie was released and the case was quietly settled. Because the case never went to trial, there was no decision.
Copyright and Tattoos: The Law is Murky
Until today, there have been no federal court decisions in the area of tattoos and copyright. High profile cases, like Whitmill's, have been settled out of court, leaving many questions unanswered.
Attorney and professor Yolanda M. King examined the issue of ambiguity in the legal protection of tattoos and the negative impact on tattoo artists and their clients in an article for Oregon Law Review called “The Challenges ‘Facing' Copyright Protection for Tattoos.” She feels that tattoos meet the requirements for copyright protection based on “originality and fixation in a tangible medium of expression,” and that tattoo artists should more vigorously defend their rights so the courts can weigh in on the issue.
Some professional organizations, like the National Football League, aren't taking any chances. According to a recent Businessweek.com article, NFL Players Association representative George Atallah said, “All we are doing is proactively telling players, ‘Yes, we know you love your tattoo artists, but regardless of whether or not you trust them, regardless of whether or not there are legal merits to the lawsuits that we've seen, just protect yourself.'” NFL player Ricky Williams has already been sued by a tattoo artist.
View From a Tattoo Artist
Tattoo artist and owner of NEPA Tattoo Club in Pittston, PA, Nick Malasto, says the biggest issue for him is when the artist is not given credit for their work. That lack of credit is what he sees as fueling an increase in lawsuits now and in the future. If he has a celebrity client come in, he lets them know upfront that payment will be expected if the tattoo is going to be prominent in the context of work that they are doing.
Most people getting tattoos are not celebrities, just regular people who want an indelible stamp of individuality. If you're concerned about copyright issues and who owns the tattoo, you may want to discuss this with your artist before the ink is dry.
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