- Tattoo You?
- October 7, 2016
- Law Firm: Phillips Nizer LLP - New York Office
I vaguely recall, from long repressed memory, the time when only sailors and thugs had themselves tattooed. But anyone caught in a crowd, especially on a summer’s day, when long-cloaked skin comes into the fore, can clearly see that having oneself inked has become quite the fashion. Apparently, late in the last century, the movement was begun by, or was at least energized by, Los Angeles celebrities who risked going to less than savory places to have butterflies, arrow-pierced hearts and other traditional artifacts poked into them with commanding permanence. The fad grew quickly to become an international trend. I remember sitting down for dinner at a restaurant in a small Bavarian town in the year 2000 and wondering, as the waitress arrived in a fetching spread-eagle bodice, how far down the tattoo on her left breast extended. The answer, we now know, is that it went as far below the line as nature gave room for its descent. When something becomes as obviously popular as tattooing, it tells us that it is time, of course, to consider the legal implications.
Covering an entire arm with words, phrases and graphic-novel style illustrations (known in the trade as “doing a sleeve”) is now not uncommon. There remain limits. The military has the right to refuse potential enlistees who arrive with what is deemed excessive or “grossly offensive” tattooing. There appears to be no legal impediment to the military in making those distinctions, but we can anticipate that someone may, at some point, raise a First Amendment objection. There has already been a federal appeals court decision striking down a municipality’s ban on tattoo parlors as a violation of the First Amendment.¹
Copyright law presents a more interesting problem: In the absence of a contract stating otherwise, the owner of the copyright in the artwork worn by the tattooed person is the artist. That is, if you go to a tattoo parlor and have it do a sleeve filled with flying dragons, flying skulls and terrestrial motifs, the owner of the copyright in the art you are wearing is not you but the person with the tattoo gun who pummeled it into you-unless (a) the artist is an employee of the salon or (b) the artist and the salon have entered into an assignment of rights contract, in which case the salon is the owner of the art on your arm. The lawful owner can register the art with the Copyright Office and sue to protect its rights against infringers, most notably including copycat rival tattoo artists.
If your artist has tattooed onto your arm something to which the copyright is owned by another-say Mickey Mouse or the Batmobile-you, as the bearer of the arm, could theoretically be caught in the middle of a legal fight with the copyright owner. In copyright cases, impoundment and destruction are possible remedies, but we likely will not see the day when the wearer of a tattoo would be required to visit a local tattoo-removal center to resolve copyright litigation. What could happen in theory in copyright matters is, fortunately, often removed from what typically does occur.
What is the takeaway from all this? Your arm is lovely the way it arrived along with you. Strictly as a question of taste, perhaps it is better just to let that be enough for you.
¹ Anderson v. City of Hermosa Beach, 621, F.3d 1051 (9th Cir. 2010)