Copyright litigation updates – “You are infringing my tattoo art”
Federal copyright protection, as defined by 17 U.S.C. §102(a), is available for “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, either directly or with the aid of a machine or device. A tattoo is basically a graphic work of art, and thus, would appear to qualify for federal copyright protection. But does it? And what happens if someone’s tattoo is infringing your copyright? Can you send them a cease and desist letter to have them stop using their body art? This blog explores a few issues.
Can you “register” a copyright for a tattoo?
Although there does not seem to be a lot of precedent on this, generally speaking any creative work of art (such as painting, illustrations, drawings) is generally understood to be copyrightable. Why should a tattoo be any different? Under existing law, to be copyrightable, a subject must qualify as a “work” under the Copyright Act. 17 U.S.C. §102(a) lists eight works-of-authorship categories that can qualify for copyright protection. Of those eight categories, tattoos appear to be protectable under the fifth prong, which covers “pictorial, graphic, and sculptural works.” 17 U.S.C. §102(a)(5).
A tattoo also meets one of the other requirements that it is “fixed in a tangible medium of expression.” A human body is tangible, and nothing communicates more than do human being themselves. Under federal copyright law, “a work is ‘fixed’ in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” See 17 U.S.C. §101. Tattoo designs are imprinted permanently in ink on the skin of human beings which is clearly stable and able to be perceived for much more than a transitory duration. But will the United States Copyright Office agree with me?
It is important to note that the United States Supreme Court has set a low bar for originality. For example, In Feist Publications, Inc. v. Rural Tel. Serv. Co. the Court stated that “original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity.” 499 U.S. 340, 345 (1991). The Court went on to state that the “vast majority of works make the grade quite easily, as they possess some creative spark.”
What are the exclusive rights of a tattoo copyright holder?
Copyright holders, including those with protected copyrights in their tattoos, enjoy the same rights as would any other rights holder. Typically, this means the exclusive rights granted to these artists under Section 106 of the Copyright Act, 17 U.S.C. § 106, which include the right to make copies of the tattoos; the right to distribute copies of those tattoos to the public by sale, the right to rent, lease, or other transfer of ownership of same; and even the right to display the tattoos publicly; and the right to include copies of the tattoos in a public performance, (including a video-game or software game).
What happens if your tattoo copy’s a copyright of another company (ex your tattoo is of a recognized copyright protected piece of art)?
Could you be forced to have your tattoo erased, as painful as that would be?
Athletes and Actors or Performers with tattoos.
Many NBA, MLB, and NFL players have tattoos. For example (as noted in the Solid Oaks lawsuit link below), some of the tattoos at issue in that case involved famous athletes such as:
LeBron James: (1) Child Portrait on his inner left forearm; (2) “Hold My Own” on his left bicep; (3) 330 Area Code on his right forearm; and (4) script with a scroll,clouds, and doves on his right forearm.
Kobe Bryant: Crown with Butterflies on his right bicep
Kenyon Martin: Wizard on his left shoulder
What if a copyrighted tattoo is used in a film, documentary, video or other performance via use of a tattoo.
Photos on instagram, facebook, and twitter may incorporate all or art of a protected copyrighted tattoo. These could also lead to potential claims for infringement in the right case.
How would you enforce a “cease and desist” letter for illegal tattoo infringement?
I suppose if you have a copyright in a tattoo, (and let’s say you have the proper assignment of the copyright from the tattoo body artist trasferring all rights to you) and you find someone else using your tattoo on their website, in their art, in a magazine, book or publication, advertisement or even on a video game. What can you do? Potentially, you may have the legal right to send a cease and desist letter demanding that the perpetrator stop infringing on your copyright (assuming you have registered the copyright is probably a good first step). The real question is what is your remedy? Can you sue for statutory damages? Can you ask a judge to order removal of the tattoo? These are some open questions that I cannot find legal precedent for, but could become emerging and trending issues in 2017.
What is copyright infringement?
“[T]he Copyright Act grants the copyright holder ‘exclusive’ rights to use and to authorize the use of his work in five qualified ways, including reproduction of the copyrighted work in copies,” Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 432–33, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984), and the right “ ‘to display the copyrighted work publicly,’ ” N.Y. Times Co. v. Tasini, 533 U.S. 483, 496 n. 4, 121 S.Ct. 2381, 150 L.Ed.2d 500 (2001) (quoting 17 U.S.C. § 106(5)). Under the Copyright Act, “[a]nyone who violates any of the exclusive rights of the copyright owner … is an infringer of the copyright.” 17 U.S.C. § 501(a). “A licensee infringes the owner’s copyright if its use exceeds the scope of its license.” ITOFCA, Inc. v. MegaTrans Logistics, Inc., 322 F.3d 928, 940 (7th Cir.2003) (internal quotation marks omitted). Thus, “[o]ne who obtains permission to use a copyrighted” work “may not exceed the specific purpose for which permission was granted,” Gilliam v. Am. Broad. Cos., 538 F.2d 14, 20 (2d Cir.1976), and “unauthorized editing of the underlying work constitute[s] an infringement of the copyright in that work similar to any other use of a work that exceeded the license granted by the proprietor of the copyright,” id. at 21.
What are the damages and penalties for copyright infringement
Following a bench trial on the issue of damages, the district court issued a 77–page order ruling on numerous issues. After concluding that TAT owed a total of $20,250 in royalties, plus pre- and post-judgment interest but less any payments previously made, the district court considered the appropriate amount of damages to award for the copyright infringement. Under 17 U.S.C. § 504(a), “an infringer of copyright is liable for either—(1) the copyright owner’s actual damages and any additional profits of the infringer or (2) statutory damages, as provided by [§ 504(c).” Tattoo Art elected to recover statutory damages under 17 U.S.C. § 504(c)(1), which permits the offended copyright owner to recover between a minimum of $750 and a maximum of $30,000 per infringement of a given work, “as the court considers just.” In cases where the copyright owner shows that the infringement was committed willfully, the Copyright Act authorizes enhanced statutory damages of up to $150,000 per infringed work. See 17 U.S.C. § 504(c)(2). See Tattoo Art Inc. v. TAT Int’l LLC, 498 F. App’x 341, 347 (4th Cir. 2012).
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