PROTECTION AND ENFORCEMENT CHALLENGES FOR TATTOO COPYRIGHTS

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1 PROTECTION AND ENFORCEMENT CHALLENGES FOR TATTOO COPYRIGHTS Yolanda M. King, Interim Assistant Dean for Student Affairs and Associate Professor at Northern Illinois Univ. College of Law AMPPI Seminar Wednesday, October 18, 2017

2 THE CHALLENGES FACING COPYRIGHT PROTECTION FOR TATTOOS (2013) Addresses ambiguity re legal protectability of tattoos and negative impact such ambiguity has on rights of tattoo artists and their customers Despite lack of federal court decisions, concludes tattoos are copyrightable Responds to expert testimony of David Nimmer, in Whitmill v. Warner Bros. Entertainment Inc. Growing problem as tattoos more commonplace

3 PREVALENCE OF TATTOOS Growing problem as tattoos have become more visible and prevalent Artists and athletes Tattoo reality shows America s Worst Tattoos Black Ink Crew Ink Master Tattoo drama series Blindspot

4 COPYRIGHTABILITY 1976 Act protects original works of authorship fixed in a tangible medium of expression, 102(a) Originality Independent creation Minimal degree of creativity Fixation A work is fixed in a tangible medium of expression when its embodiment in a copy or phonorecord is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. 101

5 COPYRIGHTABILITY Fixation Embodiment in a medium No mention of any requisite media of expression or requirements which must be met by any media of expression in statute or legislative history. What is a medium? Material or technical means of artistic expression. Duration of sufficient permanence or stability Nimmer s analogy to writing a literary work in wet sand before oncoming tide or inscribing a pictorial work in the frost of window pane Practice of tattooing historically known as one of many forms of irreversible body alteration

6 COPYRIGHTABILITY Eight Categories of Copyrightable Subject Matter Section 102(a): 1. literary works; 2. musical works, including any accompanying words; 3. dramatic works, including any accompanying music; 4. pantomimes and choreographic works; 5. pictorial, graphic, and sculptural works; 6. motion pictures and other audiovisual works; 7. sound recordings; and 8. architectural works.

7 COPYRIGHTABILITY Eight Categories of Copyrightable Subject Matter Section 101: PGS works defined as works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article shall be considered a pictorial, graphic or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified from, and are capable of existing independently of, the utilitarian aspects of the article. Useful article doctrine does NOT preclude copyrightability of tattoos

8 COPYRIGHTABILITY Categories of Copyrightable Subject Matter Useful article defined as a product with an intrinsic utilitarian function that is not merely to portray the appearance of the article. 101 Cars, airplanes, clothing, and other industrial products. Nimmer asserts that person s head qualifies as infinitely more of a useful article than many industrial products Star Athletica v. Varsity Brands, 136 S. Ct (2017) U.S. Supreme Court s Two-Element Test of Separate Identification and Independent Existence: [A] feature incorporated into the design of a useful article is eligible for copyright protection only if the feature (1) can be perceived as a two- or three- dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work either on its own or fixed in some other tangible medium of expression if it were imagined separately from the useful article into which it is incorporated.

9 Tattoo Copyright Cases Reed v. Nike, 2005 Tattoo artist Matthew Reed sued former NBA basketball player Rasheed Wallace, Nike and an advertising agency for copyright infringement after Wallace appeared in a Nike commercial Commercial:

10 Tattoo Copyright Cases Whitmill v. Warner Bros., 2011 Tattoo artist S. Victor Whitmill sued Warner Bros. for copyright infringement Warner Bros. reproduced Tyson s facial tattoo on face of another actor in Hangover II

11 Tattoo Copyright Cases Whitmill v. Warner Bros., 2011 Mike Tyson Ed Helms

12 Tattoo Copyright Cases Whitmill v. Warner Bros., 2011 Tyson posing in front of poster at LA movie premiere

13 THE ENFORCEMENT CHALLENGES FOR TATTOO COPYRIGHTS (2014) Issues of ownership and enforcement Copyright ownership vests in author Single author Joint authors [A] work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole Exception: Works made for hire Authorship of the work vests in an employer or other person for whom it was prepared Employee or Independent Contractor

14 COPYRIGHT OWNERSHIP AGREEMENTS Whitmill v. Warner Bros.: Mike Tyson signed agreement acknowledging that all artwork, sketches and drawings related to his tattoo and any photos of it owned by tattoo parlor Allen v. Electronic Arts: Ricky Williams signed agreement with broad language concerning artist s ownership of tattoo copyright Allen lawsuit troubled NFL Players Assn. NFLPA advising players to seek copyright waivers or licenses from their tattoo artists

15 ENFORCEMENT OF TATTOO COPYRIGHT Artist s choice of the human body as the medium of expression, particularly in the first instance, results in diminution of exclusive rights vis-à-vis the tattoo bearer Limited diminution of rights against third parties outside of artist-client relationship

16 ENFORCEMENT OF TATTOO COPYRIGHT Moral Rights Rights of attribution and integrity Narrow application in U.S., 106A Work of visual art defined as a painting, drawing, print, or sculpture or a still photographic image produced for exhibition purposes only Prof. Kwall Lack of concern for MRs in U.S. copyright system MRs claim complicated in light of tattoo being incorporated into being of another individual Copyright enforcement is also more complicated for the same reason!

17 ENFORCEMENT OF TATTOO COPYRIGHT Fair Use, Section 107 of Copyright Act 1. Purpose and character of use 2. Nature of copyrighted work 3. Amount and substantiality of use 4. Effect of use upon potential market for or value of work Whitmill: court critical of defendant s fair use and parody arguments Warner Bros. reproduction of Whitmill s tattoo did not comment on the artist s work or have any critical bearing on the original composition. There was no change to this tattoo or any parody of the tattoo itself.

18 ENFORCEMENT OF TATTOO COPYRIGHT Fair Use, Section 107 of Copyright Act Warner Bros.: Well, sure. You have got this powerful figure, Mike Tyson, in the original film with the tattoo on his face. What does he do? He knocks someone out when he is angry at them. He is the epitome of male aggression. Instead, now you have this milk toast character with the same tattoo on his face. It s a real spoof on men and their misadventures. Judge Perry: Yeah, I get that. I thought you had to have something that was parodying or commenting on the actual copyrighted thing. They are not saying they have got a copyright on men and their stupid behavior, and so how is this parody with regard to the tattoo? Is tattoo or Tyson the subject of the commentary?

19 ENFORCEMENT OF TATTOO COPYRIGHT Implied License Whitmill: [T]here is no evidence at all that Warner Bros. had any kind of a license implied or otherwise to use the tattoo, and so Warner Brothers use of the tattoo was unauthorized. Effects Associates, Inc. v. Cohen: 3-prong test for when implied (nonexclusive) license granted 1. Licensor created work at licensee s request 2. Licensor delivered work to licensee 3. Licensor intended that licensee copy and distribute work (later cases have not limited to these uses)

20 ENFORCEMENT OF TATTOO COPYRIGHT Implied License Touchstone for implied license is intent! Objective intent at time of creation & delivery of work As manifested by parties conduct Factors to consider (First Circuit): 1. Whether parties engaged in short-term discrete transaction as opposed to ongoing relationship; 2. Whether creator utilized written contracts providing that copyrighted materials could only be used with creator s future involvement or express permission; 3. Whether creator s conduct during creation or delivery of copyrighted material indicated that use without creator s involvement or conduct was permissible.

21 ENFORCEMENT OF TATTOO COPYRIGHT Thirteenth Amendment David Nimmer/Aaron Perzanowski Nimmer: Tattoos should not be copyrightable if on no other basis than the constitutional prohibition on involuntary servitude and other badges of slavery Perzanowski: Copyright law offers courts many tools aside from the blunt instrument of protectability to avoid constitutional concerns Norms of tattoo industry Plaintiff Reed operated outside of norms of industry Tattoo artists acknowledge clients rights to display tattoos, reproduce images of their bodies, and create new works that incorporate or destroy artists original designs BUT artists disfavor uses disconnected from clients body