Introduction: 

Tattoos have gained popularity over the past couple of years while the legal brouhaha behind many tattoos has not enjoyed similar publicity. Statista reports that about 26% of Americans in a 2021 survey had one or more tattoos; thus, tattoos have become fairly acceptable in the United States. Whilst its demand keeps soaring, many cases have been instituted to assert ownership over the copyright in tattoos. Some believe the artists own the copyright whilst others believe its ownership lies with the clients whose body acts as the medium for the inked work. 

This short article will dissect the ownership of the copyright in tattoos by considering the concept of copyright, decided cases in the United States and analyzing the Nigerian copyright space before concluding that the artist owns the copyright in tattoos and it is likely that a similar position would be the reached in Nigeria. 

Nature of Copyright:  

Copyright is an intellectual property and legal right that protects original works of authorship once it is fixed in a tangible form of expression by the author of the work. Neither the US Copyright Act nor the Nigerian Copyright Act defines copyright.   

According to the Black’s Law Dictionary, Copyright means, ‘the right to copy; specifically, a right in an original work of authorship fixed in any tangible medium of expression, giving the holder the exclusive right to reproduce, adapt, distribute, perform, and display the work’. 

Typically, only the copyright holder can make economic use of the copyrighted work; however, when a person other than the copyright owner makes certain uses of the work, there are available defences to avail this person of any wrongdoing. Some of the most popular defences in the context of tattoos are:  

1. Fair use: Under this doctrine, using another’s copyrighted work is fair for such purposes as criticism, comment, news reporting, teaching, scholarship, or research and is therefore not an infringement of copyright. In determining whether the doctrine applies, US Courts consider the following non-exhaustive factors: (1) the purpose and character of the use, including whether such use is commercial or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. 
2. De minimis use: This doctrine protects a defendant from liability for technical copyright violations if the copying is so trivial as to fall below the quantitative threshold of substantial similarity, which is always a required element of actionable copying. 
3. Implied Licence: A copyright owner holds exclusive rights to copy or distribute copies of their work. The owner may authorize another person to do so through an implied license. An implied nonexclusive license does not transfer ownership of the copyright to the licensee. It merely permits the use of a copyrighted work in a particular manner. An implied license is created when a person (the licensee) requests the creation of a work, the creator (the licensor) makes that particular work and delivers it to the licensee who requested it, and the licensor intends that the licensee-requestor copy and distribute her work. 

Ownership of Copyright in Tattoos: 

In Hayden v 2k Games, Inc & Take-Two Interactive Software, Inc, a United States District Court summarily held that a tattoo Artist owned the copyright in a tattoo. Hayden, a famous tattoo Artist, sued 2k Games, Inc (‘2k Games’) and Take-Two Interactive Software, Inc (‘Take-Two’) for the alleged infringement of his copyright. Hayden had inked tattoos on famous basketballers, Lebron James, Danny Green and Tristan Thompson who were replicated in NBA 2k16, 2K17, 2K18, 2K19, 2K20 and NBA 2K Mobile with the tattoos inked by him. Importantly, Hayden had obtained copyright registrations for the tattoos in this case.  

The Court, upon an application, summarily decided that Hayden owned the copyrights in the tattoos; however, the Court did not determine whether the defences of fair use, de minimis use and implied licence because material considerations of facts would have to be made, which could not be done at that juncture.  

In another case, Alexander v Take-Two Interactive Software & Ors. the United States District Court granted Alexander’s motion for summary judgment declaring that the defendants had copied his copyrighted work. Alexander had inked six tattoos on WWE professional Wrestler, Randy Orton. Take-Two obtained a licence to portray Orton’s likeness in WWE 2K, a video game, which itself was licensed by Orton; however, Alexander never licensed any tattoo to be included in WWE 2K. 

The Court decided that the defences of fair use and implied licence could not be decided at the point of delivering its summary judgment as material facts would have to be considered. Thereafter, the Court denied the de minimis defence on the ground that it was only available for small and insignificant copying of works and not its wholesale copying which was done in this instance as the entire tattoo was copied into the game.

Interestingly, in Solid Oak Sketches, LLC v. 2K Games, Inc., a Manhattan District Court dismissed a tattoo licensing company’s copyright infringement claim against two video game companies that developed and published basketball simulation games depicting realistic versions of NBA players and their tattoos on the basis that the Defendants had licences to publish same. 

The Court, in considering the three factors listed above for implied licences, found that (i) the players requested the tattoos, (ii) the tattoo artists inked the tattoos on their bodies and (iii) the tattoo artists intended that the players would copy and distribute the tattoos as elements of their likeness. Regarding the last factor, the Court found that the tattoo artists knew that the players were likely to appear in commercials, television and other fora with the tattoos. Given that no limitations on the tattoos were agreed upon between the artist and the clients, the clients had an implied licence to use the tattoos as elements of their likeness. This is one of the first cases to have determined the implied licence defence in tattoos.  

More recently, in Andy Warhol v Goldsmith,  the United States District Court of Appeal decided that Andy Warhol’s use of Goldsmith’s pictures to create a series of works was not fair. Although this decision does not concern tattoos, it will have a huge impact on the fair use defence which will equally have a significant impact on tattoo litigations.  

In this case, Goldsmith had taken pictures of a celebrity, the Prince. Warhol got these pictures and used them in creating a series called the Prince Series by changing its properties. After the publication of the series, Goldsmith discovered that Andy Warhol had used the picture to create other works. Goldsmith contacted Warhol alleging copyright infringement. Warhol sued Goldsmith and asked the Court to affirm that its use of the picture was fair. The United States District Court held that the use was fair as it was transformative. Goldsmith appealed and the Court of Appeal decided otherwise. It held that the use of the work did not constitute fair use as same was not transformative but closer to being a derivative work of the picture taken by Goldsmith. 

Comments: 

Although it may seem strange to normal members of society, it is good law for the tattoo artist to own the copyright in tattoos as they are the creators of the work. Despite this ownership of the copyright in the tattoo, this right may not preclude the client from using it as part of his or her likeness, as seen in the Solid Oak Sketches case. Likely, the defence of fair use would also permit clients to showcase the tattoo and use same for a wide range of activities. 

Regarding the decision of the US Court of Appeals for the Second Circuit in Andy Warhol, when a work is held to be transformative, it means that the secondary work which is made from a primary work has a distinct purpose and character. The opposite of this concept is derivative works which are derived from the primary work rather than being transformative in nature. An example of a derivative work would be the adaptation of a novel into a movie. 

As the Court held in the Goldsmith case, when considering if an artistic work is transformative, the purpose of the secondary work is less of a useful metric for consideration as it typically serves the same purpose as the primary work. Despite this statement, the Court still held that the secondary work must reasonably be perceived as embodying a distinct artistic purpose, one that conveys a new meaning or message separate from its source material. 

Considering that most of the decisions revolving around the use of tattoos involve considerations of fair use, the US Supreme Court’s decision, in this case, will have a major impact on future decisions involving tattoo litigation. 

In Nigeria, such a case where the ownership of the copyright in a tattoo is yet to be reported. Due to the similarity in the copyright laws and regime between the US and Nigeria, the Courts will likely decide similarly that the tattoo artist owns the copyright while, depending on the circumstances, the client would have the implied licence to use it for a wide range of activities. The defence of fair dealing (fair use in Nigeria) may limit a client’s liability from copyright infringement.

To escape the legal tussle regarding the ownership of the copyright in tattoos and other copyrighted works, clients are advised to sign Intellectual Property Release Forms with Artists to own the copyright in the works. 

Conclusion: 

In conclusion, the US Courts have summarily held that the tattoo artist owns the copyright for tattoos inked on clients; however, a decision has held that celebrities had the implied licence to use the tattoos as part of their likeness. The position would likely be the same in Nigeria as the copyright laws are similar. The other defences of fair use and de minimis use are yet to be examined by most of the US Courts with regard to copyright.

To avoid the issues surrounding the ownership of the copyright in tattoos and other types of artistic works, clients should execute an Intellectual Property Release Form with the Artist to own the copyright in the work.