{"id":10024,"date":"2017-10-14T09:51:56","date_gmt":"2017-10-14T14:51:56","guid":{"rendered":"http:\/\/sites.law.duq.edu\/juris\/?p=10024"},"modified":"2017-11-20T20:14:06","modified_gmt":"2017-11-21T01:14:06","slug":"tattoos-are-for-life-70-years-copyright-protection-for-tattoos","status":"publish","type":"post","link":"https:\/\/sites.law.duq.edu\/juris\/2017\/10\/14\/tattoos-are-for-life-70-years-copyright-protection-for-tattoos\/","title":{"rendered":"Tattoos are for Life + 70 Years: Copyright Protection for Tattoos"},"content":{"rendered":"
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Photo Credit: Pixabay<\/figcaption><\/figure>\n

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By Kurt Valentine, Staff Writer<\/p>\n

Throughout the 1800s, Americans attended traveling circuses that \u201cshowcas[ed] stunning tattooed [women] to amazed audiences\u201d.[1]<\/sup><\/a>\u00a0 Tattooed people were viewed as entertainment; they were human oddities.[2]<\/sup><\/a>\u00a0 Perceptions changed, tattoos have moved into the mainstream.\u00a0 In 2015, a Harris Poll asked Americans if they would be comfortable seeing a person with visible tattoos serving in different roles and professions.[3]<\/sup><\/a>\u00a0 The survey revealed comfort ranges from 86% for athletes to 59% for primary teachers and judges, and 58% for presidential candidates.[4]<\/sup><\/a>\u00a0 Americans are not only comfortable with tattoos, but more Americans are getting tattoos, especially Millennials.[5]<\/sup><\/a>\u00a0 In 2011, 21% of Americans had at least one tattoo, four years later that number increased to 29%.[6]<\/sup><\/a><\/p>\n

The growth of the tattoo industry reflects the increased popularity.\u00a0 In 2016, IBIS World estimated that America\u2019s tattoo industry was a one-billion-dollar industry.[7]<\/sup><\/a>\u00a0 As with any growing industry, laws can be slow to react to the legal difficulties encountered in that industry.\u00a0 With the tattoo industry, the focus is on copyright laws.<\/p>\n

Copyright protection, \u201csubsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated . . .\u201d[8]<\/sup><\/a>\u00a0 In 1998, the Copyright Term Extension Act, also known as the Sonny Bono Copyright Term Extension Act, was passed.[9]<\/sup><\/a> \u00a0Now, copyright protection lasts for the life of the author plus 70 years.[10]<\/sup><\/a><\/p>\n

Copyright laws protect tattoos.\u00a0 A tattoo artist creates an original work and fixes it to a tangible medium, human skin.\u00a0 There are two high-profile cases that reflect how copyright laws apply to tattoos.<\/p>\n

Following the Detroit Pistons 2004 NBA championship, professional basketball player Rasheed Wallace appeared in an advertising campaign with Nike, Inc.[11]<\/sup><\/a> \u00a0The advertisement featured a close-up of Wallace\u2019s tattoo and included a voice-over of Wallace describing the tattoo.[12]<\/sup><\/a>\u00a0 Matthew Reed, Wallace\u2019s tattoo artist, registered a copyright for the tattoo after seeing the advertisement.\u00a0 Reed filed a complaint against Nike, the advertisement agency, and Wallace alleging copyright infringement.\u00a0 The case was dismissed, presumably pursuant to a settlement.[13]<\/sup><\/a><\/p>\n

The most well-known claim for copyright infringement involving tattoos was filed by S. Victor Whitmill, the artist that tattooed Mike Tyson\u2019s face.[14]<\/sup><\/a>\u00a0 Shortly before the release of \u201cHangover Part II,\u201d Whitmill filed a complaint against Warner Bros. because one the characters in the movie gets an exact copy of Tyson\u2019s tattoo.[15]<\/sup><\/a>\u00a0 Whitmill had a release signed by Tyson that provides, \u201call artwork, sketches and drawings related to my tattoo and any photographs of my tattoo are property of [Whitmill\u2019s Studio]\u201d.[16]<\/sup><\/a>\u00a0 The parties settled for undisclosed amount and the case was dismissed.[17]<\/sup><\/a>\u00a0 The judge did state that there \u201cwas a strong likelihood of prevailing on the merits for copyright infringement\u201d.[18]<\/sup><\/a><\/p>\n

Most people that get tattooed are not famous and really have no need to get the copyright rights transferred.\u00a0 Additionally, most tattoo artists do not have clients sign a release form containing the provision Mike Tyson signed.[19]<\/sup><\/a>\u00a0 Christopher A. Harkins, an attorney that specializes in litigation involving copyright, suggested that anyone with an expectation of fame should have the tattoo artist transfer ownership of the copyright.[20]<\/sup><\/a><\/p>\n

In both cases set forth above, the remedy for infringement was clear.\u00a0 Both cases had large corporate defendants that were using the tattoos for commercial purposes.\u00a0 But fashioning a remedy for other cases might pose some ethical issues.\u00a0 In Matthew Beasley\u2019s survey of tattoo artists, \u201cthree artists expressed their feelings that tattoo removal is too extreme a remedy for their liking; thus, it is unlikely that tattoo artists would even pursue it\u201d.[21]<\/sup><\/a>\u00a0 As the tattoo industry continues to grow, these issues will evolve.\u00a0 Jordan Hatcher predicted that \u201ccases and issues concerning tattoos and intellectual property may soon become more commonplace\u201d.[22]<\/sup><\/a><\/p>\n

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Sources<\/strong><\/p>\n

\n

[1]<\/a> https:\/\/www.tattoodo.com\/a\/2016\/01\/the-art-of-tattooed-performers-from-vintage-freaks-to-suspension-art\/<\/p>\n

[2]<\/a> Id.<\/em><\/p>\n

[3]<\/a> http:\/\/www.theharrispoll.com\/health-and-life\/Tattoo_Takeover.html<\/p>\n

[4]<\/a> Id.<\/em><\/p>\n

[5]<\/a> Id. <\/em>(47% of Millennials have at least one tattoo, 37% have more than one)<\/p>\n

[6]<\/a> Id.<\/em><\/p>\n

[7]<\/a> https:\/\/www.bloomberg.com\/news\/articles\/2017-06-07\/now-everyone-s-getting-tattooed-this-startup-is-digitizing-the-industry<\/p>\n

[8]<\/a>\u00a0 17 U.S.C.S. \u00a7 102 (LexisNexis, Lexis Advance through PL 115-64, approved 9\/29\/17)<\/p>\n

[9]<\/a>\u00a0 [SONNY BONO COPYRIGHT TERM EXTENSION ACT; FAIRNESS IN MUSICAL LICENSING ACT OF 1998], 1998 Enacted S. 505, 105 Enacted S. 505, 112 Stat. 282.<\/p>\n

[10]<\/a> Id.<\/em><\/p>\n

[11]<\/a> TATTOOS AND COPYRIGHT INFRINGEMENT: CELEBRITIES, MARKETERS, AND BUSINESSES BEWARE OF THE INK, 10 Lewis & Clark L. Rev. 313, 315.<\/p>\n

[12]<\/a> Id.<\/em><\/p>\n

[13]<\/a> Id. <\/em>at 317.<\/p>\n

[14]<\/a> http:\/\/www.foxnews.com\/entertainment\/2011\/06\/21\/mystery-settlement-in-hangover-2-tattoo-lawsuit.html<\/p>\n

[15]<\/a> Id.<\/em><\/p>\n

[16]<\/a> Matthew Beasley, WHO OWNS YOUR SKIN: INTELLECTUAL PROPERTY LAW AND NORMS AMONG TATTOO ARTISTS, 85 S. Cal. L. Rev. 1137, 1148.<\/p>\n

[17]<\/a> Id.<\/em><\/p>\n

[18]<\/a> Id.<\/em><\/p>\n

[19]<\/a> Id.<\/em><\/p>\n

[20]<\/a> Christopher A. Harkins, TATTOOS AND COPYRIGHT INFRINGEMENT: CELEBRITIES, MARKETERS, AND BUSINESSES BEWARE OF THE INK, 10 Lewis & Clark L. Rev. 313, 328.<\/p>\n

[21]<\/a> Matthew Beasley, WHO OWNS YOUR SKIN: INTELLECTUAL PROPERTY LAW AND NORMS AMONG TATTOO ARTISTS, 85 S. Cal. L. Rev. 1137, 1161.<\/p>\n

[22]<\/a> \u00a0Id. <\/em>\u00a0at 1152.<\/p>\n","protected":false},"excerpt":{"rendered":"

  By Kurt Valentine, Staff Writer Throughout the 1800s, Americans attended traveling circuses that \u201cshowcas[ed] stunning tattooed [women] to amazed audiences\u201d.[1]\u00a0 Tattooed people were viewed as entertainment; they were human oddities.[2]\u00a0 Perceptions changed, tattoos have moved into the mainstream.\u00a0 In 2015, a Harris Poll asked Americans if they would be [\u2026] <\/p>\n

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