Copyright protection for tattoos: are tattoos copies?

• Author: Minaban, Michael C.

You put a tattoo on yourself with the knowledge that this body is yours to have and enjoy while you 're here. You have fun with it, and nobody else can control (supposedly) what you do with it.

--Don Ed Hardy (1)

INTRODUCTION

The practice and ritual of tattooing human skin has existed in all parts of the world and in most cultures for thousands of years. (2) The modern history of tattooing in Western cultures can be traced to the voyages of Captain James Cook to the South Pacific, where sailors encountered various Polynesian tribes among which tattooing was, and remains today, an important cultural practice and spiritual ritual. (3) When these sailors, many of whom had adorned their bodies with tattoos, returned to Europe, they ignited an interest in tattooing known as the "tattoo rage," which spread through nineteenth-century Europe. This interest in tattooing eventually crossed the Atlantic Ocean to America (4) and, by 1891, due in large part to the development of the first electric tattoo machine by American tattoo artist Samuel O'Reilly, the practice of tattooing began to permeate American society. (5)

During the early era of tattooing in America, tattoos were generally associated with sailors, criminals, and circus performers--the artistic value of tattoos received minimal, if any, recognition. In recent decades, tattoos have moved from their counterculture origins into mainstream American society, garnering an appreciation as a valid form of art. Today, tattoos are displayed prominently on the bodies of celebrities and athletes, (6) and they have been the subject matter of exhibits at museums and art galleries. (7) Television shows such as Miami Ink and Ink Master have increased the popularity of tattoos as an art form and have contributed to their increasing social acceptance. (8) As of 2012, approximately twenty-one percent of Americans had at least one tattoo; (9) for Americans under forty years of age, the percentage with at least one tattoo rose to almost forty percent. (10) This increase in the popularity and prevalence of tattoos has led to an estimated tattoo industry annual revenue growth of 2.9% between 2009 and 2014, resulting in an approximate revenue of $3.4 billion. (11)

Tattoo artists are aware of the purpose and protections of the United States' intellectual property regimes. (12) Recently, tattoo artists have initiated lawsuits alleging their possession of intellectual property rights in their works under the United States' copyright regime. Since 2005, three individual tat too artists have brought lawsuits alleging copyright infringement of their works--either of tattoos based upon preliminary drawings or tattoos created contemporaneous to their application in the client's skin. The first two cases, Reed v. Nike, Inc, (13) and Whitmill v. Warner Brothers Entertainment, Inc., (14) settled without going to trial; the third case, Escobedo v. THQ Inc., (15) was dismissed for lack of prosecution. After these cases, questions regarding the applicability of the copyright laws to tattoos remain unanswered. While the basic application of the copyright statute indicates tattoos are likely copyrightable subject matter, the courts should be cognizant of the negative policy implications that could arise should tattoos be granted copyright protection.

The focus of this Note is on tattoos on human skin, not on a tattoo artist's drawings, "flash art," or other forms of art utilized by tattoo artists as inspiration for a tattoo. (16) Therefore, as a preliminary matter, throughout this Note, the term "tattoo" shall be intended to mean the actual work applied to human skin rather than an embodiment of the work in any other form.

This Note argues that, although "flash art" and other drawings upon which a tattoo may be based are likely copyrightable subject matter under the Copyright Act of 1976 (17) (Copyright Act), the policy implications of granting copyright protection to tattoos militate against extending such protection. To avoid these consequences, the copyright statute should be interpreted as failing to include the human body as a "copy" within the scope of the Copyright Act and, therefore, tattoos would not be subject to the protection of the Act.

Part I provides a background on the statutory framework of the Copyright Act, including the requirements for copyrightable subject matter, copyright ownership, and the exclusive rights granted by the Copyright Act to the copyright owner. Part II provides an overview of three cases in which tattoo artists have alleged that their tattoos, or their drawings upon which a subsequent tattoo are based, are copyrightable subject matter. These tattoo artists have alleged infringement of their works based upon a subsequent reproduction or display of their tattooed work.

Part III begins by addressing whether, as a preliminary matter, a tattoo would generally meet the Copyright Act's copyrightability requirements. Part III then presents several negative policy issues that would likely arise should copyright protection be extended to tattoos. It concludes by arguing that tattoos are not "copies" as defined under the Copyright Act and therefore, they are not subject to copyright protection.

1. U.S. COPYRIGHT LAW

   The Intellectual Property Clause in Article I of the U.S. Constitution expressly grants Congress the authority to establish federal copyright law. (18) In the United States, copyright law is an area regulated exclusively by the federal government pursuant to the Copyright Act. The Copyright Act grants copyright protection to "original works of authorship fixed in any tangible medium of expression" (19) that fall within one of eight enumerated categories of "works of authorship." (20) This Part will discuss the elements of copyrightable subject matter, how ownership of a copyright is established, and the exclusive rights conferred by the Copyright Act upon a copyright owner.

   1. Copyrightability

      Under [section] 102(a), federal copyright protection is extended to "original works of authorship fixed in any tangible medium of expression." (21) In other words, [section] 102(a) requires the satisfaction of two elements for a work to be considered copyrightable: fixation and originality. The following subsections provide an overview of these two requirements.

      1. The "Fixation" Requirement

         The first requirement of copyrightable subject matter is fixation, which requires a work of authorship to be "fixed in any tangible medium of expression." (22) The primary function of the fixation requirement is to establish the point in time at which a work exists that may be eligible for copyright protection. (23) The medium in which the work is fixed is irrelevant to the analysis of fixation, as the Copyright Act was intended to encompass a broad scope of mediums of expression from paint on canvass to those mediums that require the assistance of technology to enable human perception, as in the case of computer software. (24) The duration of fixation need only be for "more than transitory duration," (25) which means the fixation requirement may be satisfied even if the fixation is temporary. (26)

      2. The "Originality" Requirement

         The second requirement of copyrightable subject matter is originality, which limits the grant of copyright protection to "original works of authorship." (27) When drafting the Copyright Act, Congress purposely adopted the phrase "works of authorship" (28) rather than utilizing the constitutional terms "Writings" and "Authors" (29) with the express intention of "avoiding] exhausting the constitutional power of Congress to legislate in this field" (30) by making the scope of the copyright statute narrower than the authority granted to Congress by the Constitution. In addition, Congress purposely left the phrase "original works of authorship" undefined with the intention of incorporating into the Copyright Act the definition of originality that had been developed through the courts' prior copyright jurisprudence. (31) Therefore, the interpretation of the current originality standard may be based upon caselaw preceding the Copyright Act.

         In Feist Publications, Inc. v. Rural Telephone Service Co., (32) the Supreme Court articulated the current definition of originality. Remarking that originality is the sine qua non of copyright law, the Court promulgated a two-prong originality standard, which requires that "the work [be] independently created by the author ... and that it possesses at least some minimal degree of creativity." (33) The Court elaborated further that "the requisite level of creativity is extremely low" and that most works will satisfy the requirement "as they possess some creative spark, no matter how crude, humble or obvious it might be." (34) The Feist standard presents a relatively low hurdle for copyrightability. When conducting an originality analysis, the artistic merit of the work in question is not to be considered by the court. (35) "'Original' in reference to a copyrighted work means that the particular work 'owes its origin' to the author. No large measure of novelty is necessary." (36) Furthermore, "a 'copy of something in the public domain' will support copyright if it is a 'distinguishable variation.'" (37)

         In many circumstances, a work of authorship will most certainly consist of an author's independently created expression that satisfies the requisite threshold level of creativity. At the opposite end of the spectrum, cases may arise where it is equally certain that works, such as letters or common geometric shapes, have not been created independently by the author and do not have the necessary minimum amount of creativity. (38)

   2. Establishing Copyright Ownership

      Once a work has been determined to be copyrightable, it is necessary to identify the proper owner of the copyright who will possess the rights conferred by the copyright statute. Section 201(a) provides that initial ownership of the copyright in a protected...