tattooBig

An emerging but largely unsettled issue in copyright in the United States regards photographers taking pictures of people with tattoos and then selling the image. The problem is that the tattoo artist designed and has some copyright protection over the design, and you using that design in the photo may be a violation of copyright in some situations.

Most photographers are unlikely to face this situation, but it can happen, and it’s best to understand the issue first.

The short answer to this question is that it’s entirely unsettled in case law, depends on facts of each individual use, and we just don’t know. While there are certainly guiding principles and best practices, the truth is that we don’t know how photographers can use tattoos in photographs while staying out of trouble. I’m a lawyer, so this is an exciting question for me, but I’m also a photographer, so it’s a scary question as well.

Best Practices for Photographers

As this article has pointed out, this area of law is far from settled, so it’s difficult to know what is and is not okay. The following are the business practices that I personally am going to follow regarding tattoos in my photos. I’m a lawyer, but I’m not your lawyer, so you’re best to confer with your own counsel licensed to practice in your own jurisdiction before making the decision for yourself. This article is for educational purposes only and is not legal advice.

  • If you photograph someone famous with tattoos, get a release from the tattoo artist first before publishing the photos. Why? Because famous people are magnets for lawsuits, and you don’t want to be caught in the middle.
  • Don’t publish photos that feature a tattoo as a central feature of the photo. You’re much less likely to run into disputes where the tattoo is only an incidental part of the image.
  • Never take the tattoo design and put it on another medium. For example, don’t take a couple’s heart tattoo designs and use it on a wedding album.
  • Watch out for tattoos that feature an obvious infringement of another’s rights. For example, a tattoo of the Nike swoosh or a famous person’s likeness or a batman symbol. That drags yet another party into the fight over the copyright, and likely a party with deep pockets and a strong desire to protect the mark, image, or likeness.
  • Don’t sell photos with tattoos as stock. You never really know where a stock photo is going to end up. It could be in a movie, on a billboard, on the packaging for a product, etc. Photographers should hold themselves to a higher standard when it comes to selling photos as stock because the image could be very widely distributed, and in a way that you cannot control. Many stock agencies will not accept photos with tattoos for this reason.
  • Don’t get paranoid. You’re extremely unlikely to run into trouble if you’re following these best practices.

Mike Tyson and the Hangover

The complicated issue becomes somewhat unbelievable when the leading court case on this issue involves Mike Tyson and the Move The Hangover Part 2. Yes, cutting edge legal decisions from the Hangover. What has this country come to?

On the Hangover Part 2, Ed Helms (I know him as Andy Bernard on “The Office”) has a facial tattoo. The movie producer took the design of the tattoo from the one on Mike Tyson’s face, which was designed by a tattoo artist named Victor Whitmill. Whitmill didn’t like the thought of the movie using his design in the show without payment, so he sued.

The unfortunate part of all of this is that the case settled “amicably” out of federal court (Federal Courts have exclusive jurisdiction over copyright issues). That’s unfortunate, because it means we really have no idea how the case would have ended up. We don’t know what a judge would have ruled on the issue. However, the court did deny an injunction in the case largely because of the potential magnitude of harm if an injunction was granted and then Warner Brothers prevailed. In denying the injunction, Chief Judge Perry said that the plaintiff’s case was “strong” and that the arguments from Warner Brothers were “silly.”

Another question left unanswered is if Mike Tyson would have a cause of action against the movie producer. It could be argued that the tattoo became part of his likeness, and it was Mike Tyson’s likeness that was being sold in the movie, but we didn’t learn that from the Whitmill case because Tyson had signed an agreement with the tattoo artist securing the artist’s exclusive copyright over the design. Tyson is pursuing this avenue in regard to his tattoo, for which he has filed for trademark protection.

There is an obvious public policy argument over a company holding copyright over another person’s own skin, and many attorneys would agree that a court is unlikely to make a law preventing someone with a tattoo from having pictures taken of them. The issue in the Hangover case was whether that design could be taken off the face, transferred onto another, and then selling video of that design.

Rasheed Wallace and the NBA

Rasheed Wallace, the NBA star, was featured on a Nike commercial discussing his tattoo. That tattoo had been designed by tattoo artist Matthew Reed, who took issue with images depicting that tattoo. One significant factor in this case that would differ from that of a typical photographer situation is that the videographer animated the drawing of some of the tattoos, thus creating a derivative work.

For photographers and videographers, this case would directly answer the question of whether or not you can photograph someone with a tattoo and profit off the images. This case was unlike the Hangover case where the design was taken from Mike Tyson and put on another person.

Unfortunately, this case also settled out of court-giving photographers no precedent to follow.

Conclusion

It will be interesting to see how the law figures out these interesting questions about photographers and tattoos. It’s a complicated dance of the rights of multiple parties.

However, this is unlikely to become an issue for most photographers as long as you follow the best practices listed above.

Original Content provided by Improve Photography

12 Comments

  1. This shouldn’t be complicated. Once you pay a tattoo artist and it becomes a PERMAMENT part of your body, the tattoo artist loses all future claims. Any claims over the body of another human being is akin to human ownership, a form of slavery.

  2. The conflict isn’t over the person’s skin, it is over the design of the tattoo. More than 1 person can have the same tattoo, but there is only 1 design (and copyright owner) for that tattoo. The tattoo artist does not give up his copyright just because he put the design on someone’s body.

  3. NO. You are wrong. When a tattoo has been drawn custom for a client is is NEVER to be copied by another tattooist. Its unethical and rude

  4. Actually Steve it should be that complicated. What you are saying is akin to photographers losing copyrights to photos that are distributed by paying clients. The photographer still owns the original IP, the negative, the raw digital file etc. Why is a tattoo any different? The artist still owns the IP unless they sign otherwise, they were the original creator. So yes, it should be that complicated. Things are very different than what they used to be 100+ years ago. Everything is commercialised and everything is done with compensation in mind. You get nothing for free, ever.

  5. “You get nothing for free, ever. ”
    Right, but the tattoo wasn’t free.
    Legally you are right, the copyright is not “work for hire” and remains with the artist – though the boundaries of tattoo copyrights are still unsettled by case law, as the article notes. But morally, I have to agree with Steve. Under your strict standard, all people with tattoos need to individually license reproduction rights for each and every family photo, Facebook post, incidental photo, professional head shot, etc. that shows tattoos. That, frankly, is a ridiculous situation. And, no, it should not be that complicated. A tattoo artist should not be able to infinitely milk a client over IP rights to a design the artist **permanently embedded** in human skin where it is bound to be photographed along with the person. I think a certain trade off of rights for the artist is reasonable in such circumstances. Clothing, for instance, is generally not copyright, yet the apparel industry is a thriving, multi-billion dollar industry. Imagine if you had to get copyright clearance for *every article of clothing* in a stock photo (everything, from socks and shoes to lingerie and outerwear), because that’s the equivalent of your stance on tattoos.

  6. Scote,
    my understanding is stock photo agencies will generally not allow any trademarks on clothing. It will not pass the vetting process if it has a Nike logo on the sneakers. Regardless of any copyright issues, or lack thereof, no client of an ad agency wants to foot the legal bill to find out. So the stock agencies make sure no one has any reason to refuse to buy the image.

  7. I would think (as a human of common sense) that if the tattoo was the subject or part of the concept of the photo being taken, than the tattoo artist would have a right to permissions & royalties & whatnot; however, if some ink on some random person (or maybe even a chosen person) just happened to be in the background or on a subjects arm or face or whatever & has nothing to do with the concept of the photo being taken or commercial being shot, than that should be deemed fair use (or even fair non-real-usage).

  8. Paul Mansfield

    this makes for some interesting issues
    a contract made with a tattoo artist could cause someone to have to pay the artist every time he or she had a photograph taken where the tattoo was visible
    if you decided you didn’t like the tattoo and had it removed, you could be committing criminal damage against the artist’s intellectual property

  9. I agree with Steve that it *should* work that way, that any design created for you and inked on you should come with, at the very least, a very broad non-exclusive license, but it doesn’t under the law.
    One of the big problems here is one that photographers run into all the time with their clients, which is a fundamental misunderstanding of how automatic assignment of copyright works under “work for hire” in copyright law. The general public hears “work for hire” and thinks that if they hire someone to do art that counts as work for hire, and thus, they who hired the artist, will own the copyright. Most people don’t realize that work for hire generally applies only to actual **employees,** and not vendors or independent contractors, and that copyright can only be transferred by a *written*. Neither assumed nor oral agreements apply. (Walmart found this out the hard way when their audio visual vendor, with whom they had no written contract, started selling copies of videos of Walmart meetings.) So, every thing from vacation portraits taken by a helpful stranger to wedding videos and tattoos are automatically copyright by the people that made them, not the people who requested them, at the time the image was fixed in a medium.
    All of that being said, I think any public art, such as buildings, publicly commissioned outdoor sculptures, visible tattoos, etc., should be considered fair use when used incidentally in a photograph. But as to what the law “thinks,” that is a different, and much more complicated matter.

  10. Yes, *trademarks*, which you can strip out. But there is no clearance on the copright of the design of the *clothes* themselves because there is no copyright on clothes – and thank goodness for that. Imagine what your life as a photographer would be like if *everything* was copyright maximalized, and required prior clearance.

  11. The same issue occurs when photographing graffiti and street art. The artist will argue it’s their copyright, but then the architect of the building on which the graffiti is sprayed has the same claim.

  12. Another fascinating and scary (in time for Halloween–kudos) topic! My first thought was “doesn’t impact me/my genre of photography”, but then I remembered that I shoot the Tough Mudder (extreme sport) competitions following Team USA participants and for the competition organizers. There were several participants with tattoos, but as noted in the article the tattoo was not the primary feature of the images. The images also are also editorial-use only. Thanks for highlighting this potential pitfall! I’m going to be much more careful in the future!

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