Is Your Body Copyright-Protectable?

Do you infringe your tattoo artist’s copyrights by removing, modifying, or even publically displaying your tattoo?  The answer is actually far from clear.  Putting aside the question of whether a particular tattoo design is “original” enough to be afforded copyright protection – an issue in every copyright infringement action – the overarching question is whether tattoos, in general, should be afforded protection.  Although presented in several cases that were ultimately settled, to date, no appellate court has ruled on the issue.  The issue has arisen again in In re: THQ, Inc., et al., Case No. 12-13398 (Bankr. D. Del. filed Dec. 19, 2012),  a case before the Bankruptcy Court for the District of Delaware, in a motion to reduce the estimated value of a copyright infringement claim (see Dkt. No. 784).

In THQ, bankrupt video game developer and publisher THQ Inc. moved to reduce the estimated value of a disputed copyright infringement claim brought by tattoo artist Christopher Escobedo.  Escobedo alleges THQ violated his copyright in an original lion tattoo that Escobedo allegedly created and tattooed on Ultimate Fighting Championship star Carlos Condit by depicting Condit (and the tattoo) in THQ’s Ultimate Fighting Championship video games.

In support of its motion, THQ cites a preeminent copyright law scholar, Professor David Nimmer, for the proposition that “a copyright-infringement claim in works on a human body, such as a tattoo or plastic surgery, should be ‘dismiss[ed] summarily, if on no other basis than the constitutional prohibition on involuntary servitude and other badges of slavery.”  The involuntary servitude argument stems from the notion that a tattoo artist’s ownership of the copyright to a work affixed on another person would effectively prevent that person from modifying or removing that tattoo or even appearing in public with the tattoo displayed.  For this reason, THQ argues, “[t]attoos in human flesh simply are not (and they never have been) the subject of copyright protection.”

Despite THQ’s (and Professor Nimmer’s) arguments, there is some authority supporting the copyrightability of tattoos.  Perhaps the most well-known discussion is in Whitmill v. Warner Brothers Entertainment, Inc., No. 4:11-cv-752 (E.D. Mo. 2011), where tattoo artist Victor Whitmill sought to enjoin the release of the film The Hangover after learning that a character in that film receives a tattoo similar to the famous tribal tattoo Whitmill created and affixed to the face of boxer Mike Tyson.  Although she ultimately denied injunctive relief, Judge Catherine D. Perry stated:

Most of the defendant’s arguments against this are just silly.  Of course tattoos can be copyrighted.  I don’t think there is any reasonable dispute about that.  They are not copyrighting Mr. Tyson’s face, or restricting Mr. Tyson’s use of his own face, as the defendant argues, or saying that someone who has a tattoo can’t remove the tattoo or change it, but the tattoo itself and the design itself can be copyrighted, and I think it’s entirely consistent with the copyright law[.]

Whitmill was ultimately settled, but Judge Perry’s opinion appears to provide a sensible interpretation of the copyright law as applicable to tattoos.  The problem with the opinion, however, is that it contradicts the literal language of the copyright law.  If, as Judge Perry opines, tattoos can be copyrighted, the copyright owner should enjoy all rights afforded under the law, including the right to prepare derivative works and the right of performance.  As Professor Nimmer recognizes, however, those rights may be infringed by altering the tattoo or displaying it in public.  One approach to harmonizing these different approaches would be to find that a tattoo artist, by choosing the human body as the canvas for his or her artwork, grants an implied license to the subject for various uses of the work.  It will be for a higher court, however, to definitively resolve this extremely interesting intersection between art and the law.