Copyright Protection for Tattoos: Are Tattoos Copies?

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. …