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June 9, 2011
Copyright Yo Face!
David Post had an interesting blog post last month asking the question of whether a tattoo is a copyright-protected item
. The case in question involves a custom-designed facial tattoo created for Mike Tyson, and duplicated for actor Ed Helms in the film Hangover 2
The artist who created the tattoo, Victor Whitmill, claims copyright and sues for infringement. Post walks through the elements necessary to establish copyright - and remember that since Berne there is no requirement that copyrights be registered in order to exist. If a tattoo can be copyrighted - and Post strongly agrees that it can be - then the work was copyrighted as soon as Whitmill did it.
Post also dismisses a claim that "the human face cannot be a 'medium of expression' for purposes of the Copyright Act" but he does not deal with any of the issues I think copyright in a tattoo raises. For one thing, a tattoo is often done in more than one sitting. In the case of a complex tattoo there may be a session to set the outline, another session to fill in color and another session to do complex detail work or shading.
Unlike, say, a painting on canvas that may also be done in multiple sessions, the partially completed tattoo is shown and fixed after each session. The subject may - for example, due to lack of money - not return for follow-up sessions. Is the partially completed tattoo the copyrighted work, even if it differs substantially from the original agreed-upon design? Are there multiple copyrighted works created in series here? In this case we might think of a tattoo as more like a story that is printed in a serial form - each chunk/chapter that is printed is itself copyrighted, as is the final compiled work.
Tattoos also are often modified. A person may choose to have a tattoo extended, either by the original artist or by another artist, years later. Since copyright term is long enough to cover these periods do we have to treat these additional artworks as derivatives of the original? Do I have to get permission from the original artist to modify or add on to my existing tattoo? If I can no longer find the original artist does that make my tattoo an "orphan work" that I'm legally not allowed to create a derivative of?
And finally, where does copyright restriction intersect with our general laws on personal bodily freedom. Lawrence v Texas and other cases established some strong precedents on personal liberties - generally speaking I'm allowed to do what I choose with my body as long as it doesn't cross certain thresholds. Does my modification of my tattoo fall under personal liberty permissions even if it violates the original artist's copyright? What if my modification is always covered by my clothing in public and only visible in private; does that make any difference?
Copyright may, as Post claims, be a natural form of protection here but I fear it raises far more questions than it answers.
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