Who owns the copyright of the tattoo? The person who received the tattoo or the artist?

[JonLP24]

This article is a couple months old but it is interesting

Questions Concerning Copyright Of Athlete Tattoos Has Companies Scrambling

A total of 26 seconds in a 33 second Yahoo YHOO -0.44%! Fantasy Sports advertisement features San Francisco 49ers quarterback Colin Kaepernick sitting in a tattoo artist’s chair holding a tablet featuring the Yahoo! Fantasy Football app while getting inked up. What once may have been viewed as a distraction due to the media’s overwhelming obsession, Kaepernick’s tattoos now serve as a unique identifier of the 49ers’ leader and are prominently featured when the quarterback’s likeness is used by companies interested in associating with the star. The question is no longer whether the tattoos that cover Kaepernick’s body will detract from his brand (he and his tattoos are featured on the cover of GQ’s September issue); the fear is that it could lead to future liability not only for the signal-caller, but for all other NFL players who are inked up.

The ink issue is over who owns the copyright to the images depicted by the tattoos emblazoned on athletes’ bodies. According to sources speaking to FORBES on condition of anonymity, the issue of copyright ownership concerning tattoos on football players has very recently been labeled as a pressing issue by the NFL Players Association. One source said, “I don’t blame [the NFLPA], but they should have been on top of it earlier. It was something that was mentioned at the NFL Combine — that was the first I had ever heard them mention anything on the issue of tattoos. They advised agents to tell their players that when they get tattoos going forward they should get a release from the tattoo artist and if they can track down their former artists, they should get a release.”

While it is just now garnering attention within the world of sports, copyright ownership of body ink was the subject of a contentious lawsuit between S. Victor Whitmill and Warner Bros. when the film studio placed a tattoo on the face of actor Ed Helms in “The Hangover Part 2″ that mirrored the popular tattoo Whitmill designed for the face of former undisputed heavyweight boxing champion of the world Mike Tyson. Before the case settled out of court, Whitmill alleged that he owned the copyright to the design of the face tattoo. This raised the question: does the person who receives a tattoo own the images that are tattooed on him or is the copyright owned by the tattoo artist? It is a question that has not been ruled upon by the U.S. Supreme Court.

If a court deems that tattoos can be copyrighted and unless a work-for-hire agreement is signed between the tattoo artist and the recipient of the tattoo, it is likely that the court would rule the artist maintains ownership of the copyright of the tattoo. The question of whether a tattoo even warrants copyright protection is answered by Jeffrey Harrison, University of Florida Levin College of Law professor of Copyright. ”If it is copyrightable on paper, it’s similarly copyrightable on any medium that lasts, including skin,” said Harrison to FORBES.

http://www.forbes.com/sites/darrenheitner/2013/08/14/questions-concerning-copyright-of-athlete-tattoos-has-companies-scrambling/

[jberryhill]

1. The artist

Which is why you should get an assignment of rights to display, reproduce in photographs etc. when you get a tattoo.

[pnwmom]

38. Or could you just have them sign a work-for-hire contract? n/t

[jberryhill]

43. That phrase gets a lot of abuse

Given the regular revisions to the Copyright Act, I prefer to spell out the rights licensed or assigned. What one person calls a "work for hire contract" might not be what another person calls it. Under the Act, WFH only applies to certain kinds of works, so if WFH is defined by reference to the statute, the definition can become ambiguous.

Normally you aren't going to want to reproduce it as a tattoo, but the artist may want to, unless you have the only one.

There are also some issues around term. The tattoo per se isn't going to last as long, under ordinary circumstances, as the copyright term itself, since you probably won't live that long. So there's that...

[uppityperson]

2. I view it same as a painting. The person who bought it from the buyer owns it. Or do painters and

other visual artists have a copyright after their painting/etc is sold?

[laundry_queen]

4. That's how I see it.

For instance, if you buy some art, do you have to get the artist's permission for their art to be on TV if you happen to do a news segment or reality show in your home? Copyright, IMO, in this instance, should only stop the person from reproducing the image, not from showing it on tv. I think the tattoo artist can hold the copyright to the artwork, but can't control who sees the tattoos s/he produces or who copies them (kind of like clothing).

[X_Digger]

16. Ever watch HGTV / DIY? You'll see a lot of blurred artwork on the reality shows.

Having an artist's work appear in a news segment would likely be fair use, but showing it in the background of the infomercial you're filming in your home? That'd be a no-no.

[mike_c]

5. the artist always maintains control of the copyright unless...

...specifically reassigned. The buyer receives the right to own and display the work, but not to reproduce it unless the artist releases that right to the buyer. "Reproduction" would presumably include photographing or filming the tattoo.

What I find interesting is that if athletes are tattooing things like team logos and such, neither the athlete nor the tattoo artist should have any right to reproduce or display those images without assignment of rights by the logo owner, which is USUALLY the buyer because they'd want reproduction rights of work for hire.

[uppityperson]

6. Huh, thank you. I learned something today.

[HooptieWagon]

11. I don't think normal photography and filming is included.

For example, a news crew goes into a persons home for a story, and a piece of original art is displayed in the photos/film, I don't think a release from the artist is required. If a coffee table book is published of photos of works of art, then a release (or royalty payments) is probably required.
Assuming the tatoos are the original creation of the tattooist, he (she) is entitled to file a copyright. No other tattooist may copy the design without permission, nor may it be reproduced and sold. The person recieving the tattoo is entitled to display it, which may include photos or film, if the subject of those photos or film is the person. If the subject is the tattoos, then probably a release should be obtained from the tattooist.

[jberryhill]

28. No, you don't get the copyright by buying the painting

[sibelian]

47. All rights on graphic work default to the artist.

...in the absence of written agreements to the contrary, of course...

You can buy an original painting from someone, but you can't then photgraph it and sell it without their consent.

[Skidmore]

3. So when an artist wants his work back, does he demand

the wearer's arm be cut off? Sometimes the work you do just walks out the door. Copyright law is just stupid sometimes.

[StrayKat]

29. Ouch! Talk about a pound of flesh.

[jberryhill]

30. No. Do recording artists come and take their records back

They don't. But you are not allowed to reproduce them.

[kentauros]

34. That depends.

In the case of a band doing sound-collage where they've used other artists' work as part of their new creation, some labels don't like that and, when they win, will demand that all copies be immediately destroyed or sent back to the label for said destruction.

Negativland's "U2" EP is a fine example of this. Of course, most people in possession of that album didn't return it and it became an instant collectors item. I have one

[Ms. Toad]

37. The sound-collage involves copying.

Which the band didn't have a right to do (even if it had purchased a single copy of each of songs it was making the collage of).

[Ruby the Liberal]

7. What if the person sporting the tattoo drew the design themselves

and the artist just inked it as designed?

[JonLP24]

8. Right when I was thinking of that

I saw this post. Good question.

[HooptieWagon]

14. The person who created the design owns it.

In fact, if someone creates an original design and goes to a tattooist to ink it on, they probably should register it with the US Copyright office (which is about $25) so the tattooist doesn't ink the same design on every Tom, Dick, and Jenny that walks in the door.

[TorchTheWitch]

33. the copyright goes to the creator of the idea/concept/vision of the design

So whoever designed the tattoo would own the copyright of the design. Think of it as an architect owning the design of a building and the builders just followed that design to build the building - the builders can't claim ownership of the design since it was never their own creation (they were just the builders of the creation). Same with books, movies, music, etc.... the copyright goes to the creator. That's also why a copyright is also attached to the creator of an idea/concept/vision without it ever being written down, painted or drawn, etc. since it follows the person who came up with the idea/concept/vision.

For instance, if I had an idea for a movie and told my idea to someone who then made the movie based on my idea I could sue for copyright infringement since though I never wrote any script or outline someone else stole my idea/concept/vision in order to make the movie. Another for instance, suppose I came up with a song and sang it for someone and they stole my music and lyrics and produced the song themselves. Since I was the creator with the idea/concept/vision I could sue them for copyright infringement though I never wrote the song down. Of course, these would be sticky situations since the original creator of the idea/concept/vision would somehow have the prove that they were.

The tattooist only has the copyright of a design if they themselves were the creator of the idea/concept/vision of the design even if they drew the design to use to make the tattoo since the tattoo was drawn and tattooed based on someone else's idea/concept/vision.

However, it gets complicated if whoever does the work adds in THEIR idea/concept/vision that is accepted by the original creator since then it becomes a collaborated effort by both the original creator of the design and the person that (with the agreement of the original creator) added in their own idea/concept/vision. Depending on how much was changed from the original idea/concept/vision the copyright can go to either the original creator, the person that added in their own idea/concept/vision that changed the original idea/concept vision or both.

[HooptieWagon]

9. OK, I know a bit about copyrights.

First of all, if no one has registerred it, then no one owns it. Second, the copyright is issued to the person who "created" it, which may not be the tattooist. It may not be the person getting the tatoo. Suppose a "friend" of the person getting the tattoo made up a drawing and gave it to them. That person then goes to a tattooist and says tattoo this design on me, which the tattooist proceeds to do. The "friend" is entitled to file a copyright on their art design, provided it's original (which is why I used parentheses). If the friend copied it from elsewhere, then whomever originally came up with the design can file a copyright of ownership.
Now, in the case of tattoos, I have no idea how copyrights can be enforced, or royalties collected. A clever attorney may be able to come up with a scheme. In the case of the 49ers QB, if the tattoo artist created the design, he may file a copyright. Reproductions of the tattoo probably earn him royalties. Photographs of the original probably do not.

[X_Digger]

17. Umm, copyright does *not* have to be registered.

As a creator, copyright exists when it comes out of your head and into a tangible form.

http://www.copyright.gov/help/faq/faq-general.html#mywork

[HooptieWagon]

19. Best of luck enforcing it if you haven't registered it.

You may think you own your house, but if you don't have a deed you don't own shit. Just ask the Palestinians.

[X_Digger]

21. I've had takedown notices issued for my work, without registration, and been successful.

I can give you the name of some competent copyright attorneys if you'd like to speak with them.

[HooptieWagon]

23. If you can prove you created it, you can have a successful claim.

A common cheap way to do it is to mail yourself the article, but don't open the package. The postmark establishes the date for you.

US Copyright office is still the best, though. I have steered several musician friends that direction. It is far cheaper than ASCAP, and it gives the musician more freedom than ASCAP, since they can't even play their own original songs in a venue that isn't paying ASCAP licensing fees if they registered the songs with ASCAP. Better stop before I go off on another ASCAP rant.

[X_Digger]

25. I've done so without registration.

First of all, if no one has registerred it, then no one owns it.

^ That right there? Dangerously wrong.

[HooptieWagon]

26. Yes, I wasn't entirely accurate in a hasty statement.

However, If you haven't documented well, someone else can copy the piece, claim it as theirs with documentation, and you'll have a tough and expensive legal battle you may lose. And you may get stuck paying THEIR legal expenses, plus royalties. Thats the way it is. Registering is the best protection of your ownership rights.

[X_Digger]

27. "Registering is the best protection of your ownership rights." -- that I can agree with.

The rights exist before registration, but registration affords you legal avenues and punitive damages that would otherwise be unavailable.

[Ms. Toad]

39. You are scrambling concepts that are not directly related.

Creation of copyright: Copyright exists at the moment it is recorded in tangible form. No registration. No marking. No nothing else required.

Registration of copyright (i.e. with the U.S. copyright office) does four things: Registration of copyright can only be done with the US Copyright office (or the equivalent in another country). ASCAP is NOT an alternate registration entity, nor is mailing yourself an article. Registration of copyright opens the courthouse door (registration is mandatory in order to succeed in an infringement suit), it provides access to statutory damages (you don't have to prove damages - just how many infringing acts were done), and it provides some evidence of when a work was created (e.g. if you registered it 1/1/2013, it had to be created by that date - at the latest), and it provides notice to the world of your assertion of copyright interests.

ASCAP is one of four major performing rights organizatiosn (BMI and SESAC being the other two I have had encounters with, and SOCAN which I haven't dealt with). Artists associated with one or more of these in order to permitting musicians to use music without the need to negotiate directly for every performance - and to facilitate collection of the royalties. Each performing rights organization has a collection (to some extent overlapping collections) which people who want to provide music in a venue may use based on standard royaltu schemes (based on size of venue, frequency of performances, etc.).

But - no author loses his or her copyrights (including the right to perform his or her own music) in any venue s/he wants merely because others can license it via ASCAP/BMI/SESAC. Others who want to perform venue that is not paying ASCAP license fees cannot (unless they have a license directly from the author(s) - in which case they can play it wherever the author(s) have granted permission - even in a venue not paying ASCAP fees.)

[HooptieWagon]

46. No, you cannot perform ASCAP registered music in a non-licensed venue.

Not even your own. Ask them. They won't sue you, they'll sue the venue. For a lot. That eliminates one more place to play. These are the people who sued Girl Scouts of America over the campfire songbook.....because with ASCAP you can also register arrangements. Burden of proof is on the venue to prove you didn't perform one of the arrangements registered with them (by a previous court decision). They are a legally sanctioned extortion racket. Great if you have a hit record on commercial radio, but a curse upon local musicians and small venues.

[Ms. Toad]

48. They can sue but they have no grounds, and you will win.

When you associate with ASCAP, all you are agreeing to is to license your work to others through ASCAP. You are not assigning your copyrights to them - you still own the copyrights (which includes the right of public performance).

There may be overlapping rights - there are composer's rights, lyricist's rights, and performer's rights. ASCAP provides a way of licensing all of those rights all at one time - rather than negotiating separately with each.

So if you are the lyricist, for example, and used a composer for the music, and it was performed by a third party band, there are three (at least) sets of copyrights. Even if you own the copyright to the lyrics, you don't have the right to perform the music unless you have a license from the composer or pay royalties through ASCAP or an equivalent. Even if you own the copyright to the lyrics and the score, you don't have the right to publicly perform someone else's rendition of it without a license from them or from ASCAP or the equivalent. The Girl Scouts songbook is an example of the intersection of multiple copyrights - multiple lyricists and multiple composers. If the law is read literally, the Girl Scouts would have needed to obtain the consent of each of the composers and each of the lyricists for the campfire performances - BUT if the girl scouts had invited Lenny Tipton and Peter Yarrow to come sing Puff the Magic Dragon around the campfire with them, Those two would have been perfectly within their rights to do so without paying fees to ASCAP.

That said, even though they were probably literally within the letter of the law, it was a boneheaded move to sue them, though. (And situations like that is why there are exceptions written into the law for performance of music in church, for example.)

But since you seem inclined not to believe someone who does this for a living - the ASCAP bill of rights for songwriters and composers - #5

We (meaning songwriters and composers) have the right to choose when and where our creative works may be used for free.

If you want to keep your venue, have an attorney prepare a simple performance license (but make sure you own ALL the rights to what you are performing) granting the venue the right to perform your works. If ASCAP knocks on the door of the venue, all it has to do is provide the license from the copyright owner(s) - and point to #5 of the ASCAP bill of rights. (You don't even have to do that - from a legal perspective - if you own all the rights - but it might make the venue more comfortable.)

[HooptieWagon]

49. They almost always win.

They pull in over $700 million a year, and can spend all of it filing lawsuits. An average bar or coffeeshop owner simply can't afford to fight a lawsuit that will cost several hundred thousands of dollars win or lose. So they either pay licensing fees, or cease having live music.
And again, I emphasize that the burden of proof is on the venue owner, per a court decision by an activist judge. ASCAP has spies that go around looking for unlicensed venues. They report back to HQ, and the lawyers immediately file a lawsuit that states in effect "You are hosting live music, prove none of it was an ASCAP registered song or arrangement". That is nearly impossible. Understand....there are over 200 arrangements of "Happy Birthday" registered with ASCAP. Performer sings Happy Birthday to a customer, resturant gets sued, how is it possible to prove none of the 200 arrangements was performed?

I'm all in favor of artists creations being protected, and them being compensated when their songs are played and performed. But thats not how ASCAP operates. Because of their sampling methods, the big stars played on commercial radio, TV, and Movies receive a disproportionate share of royalties. For 99% of artists, they are very lucky to receive a few pennies, even if their songs get lots of airplay on college and community radio, or are covered often in bars and coffee houses.
IOWs, Lady Gaga probably gets a $1million plus per year, Ani DiFranco might get a few hundred dollars/yr.

[Ms. Toad]

50. I'm not arguing about whether the system is fair -

but you don't understand the law. It (intellectual property law) is what pays my bills.

The point you are making now (that they go after unlicensed venues) is very different from the point you started making - that an author could not perform his or her own works in any venue if they have affiliated with ASCAP.

Challenging venues which regularly host a variety of live performances - including performances licensed through ASCAP - to prove they have a right to perform those pieces (either by direct license from the copyright owners - or a royalty arrangement with ASCAP) is very different from saying the owner of all of the rights to a musical work cannot perform that musical work except through the ASCAP royalty scheme, which is where you started.

It actually is valid for ASCAP to insist on documentation if works of artists who have chosen to affiliate with it are being performed in venues without royalty agreements with ASCAP - that is one of the benefits for an artist affiliating with ASCAP. They don't have to run around to every place their work may be being performed without their consent to try to collect royalties. And if a venue chooses to work directly with artists performing their work (or work they have all of the rights necessary to perform) rather than through ASCAP, it would be very foolish not to be scrupulous about keeping copies of written contracts from the artists granting it the rights to perform the works.

[msongs]

22. unregistered copyrights can absolutely be enforced, they just cannot get certain legal damages nt

[HooptieWagon]

24. Only if you can prove you created it before another claimant.

see post above.

[Ms. Toad]

40. It has to be registered in order to use the courts to enforce it

An odd quirk in the law. Copyright exists without registration - but in order to gain access to the courts as a tool for enforcement, you must register the copyright - and there is a split in jurisdictions. Some require registration to be completed before filing suit; others merely require it to be applied for when the suit is filed.

But you are right about the damages - you don't have to prove how much you have been harmed if you have registered the copyright before the infringement happens, you are entitled to per infringement damages even if you can't prove any harm if the copyright is registered.

[jberryhill]

31. Your first sentence is absolutely false

[HooptieWagon]

32. Already discussed in the subthread.

[frazzled]

10. I can tell you how it works for visual artists (painters, sculptors) or authors

The copyright remains with the artist, and that includes any uses to which that work might be put. So, just because Mr. Millionaire art collector has purchased a painting by Artist X for a large sum and owns it in his personal collection, he may not control how that work is reproduced. So if Barf Vodka wishes to use an image of that painting on its vodka bottles, it may not get permission to do so from the owner of the work. It must come from the artist. As it should be: the creator of a work should be able to make the decision about how his or her ideas are to be used. Say, they do not wish a Tea Party Republican candidate to use their artwork (say, a Jasper Johns American flag painting) on a campaign poster.

And this has all been settled by law. There is an organization called Artists Rights Society (as well as one called VAGA), which oversees these rights for artists:

The mere ownership of a book, manuscript, painting, or any other work does not give the possessor of that work its copyright. The law provides that transfer of ownership of any material object that embodies a protected work does not of itself convey the copyright or any interest in the copyright. This remains in the possession of the creator and is often referred to as the underlying artist’s copyright, distinct from the physical object which embodies it.

http://www.arsny.com/basics.html

http://vagarights.com/

[Motown_Johnny]

12. Neither, unless one of them copyrights it.

If you copyright it, then you could own it.

[X_Digger]

18. Copyright extends from creation in a tangible form. You do not have to register.

http://www.copyright.gov/help/faq/faq-general.html#mywork

[The Velveteen Ocelot]

13. The tattoo artist should add the copyright symbol to the tattoo.

That little © - right next to the skull with a knife through the eye socket.

[pipoman]

15. Wait..

someone actually 'designed' the shit on Tyson's face? Now is claiming it? Sounds more like a good liability suit for Tyson..

[X_Digger]

20. The person who owns the copyright is the original creator or the current copyright holder.

If the logo was originally a work made for hire by an artist, then the person hiring the artist owns it. e.g. If I hire you to write a jingle for my widget company, you don't (usually) retain copyright. I can advertise the snot out of my widget company with the jingle and I don't have to pay you royalties. If I ask to use a jingle you had already made, you retain copyright, and I pay you royalties (unless I also purchased or licensed the reproduction rights).

http://en.wikipedia.org/wiki/Work_for_hire

If the tattoo artist created the work from scratch, then copyright is attached at the moment of creation- when he draws out the sketch for customer approval. No registration, no (C) symbol required.

If it's a derivative work- e.g. having mickey mouse flip the bird on my bicep, well there it gets a little fuzzy. Is it social commentary (aka fair use?) I doubt it'd be considered educational or news reporting (other fair use exceptions.)

Now that I think about it, it's hard to imagine an expectation of non-reproduction when you tattoo someone famous, or you do a tattoo like permanent lip liner, where the work is not really considered 'art'.

Interesting questions, nonetheless!

[Ms. Toad]

41. Work made for hire - you don't have it quite right.

Work made for hire is a much more limited set of work than most people think. There is a very narrow list of things which are eligible to be work made for hire (and bells and whistles attached to the nature of the agreement that go well beyond just forking over money) - for everything that doesn't fall within that list (or doesn't have the right bells and whistles), without an assignment the person doing the hiring doesn't get acquire the copyright.

[Marr]

36. I would assume it's owned by the person with the tattoo-- as work for hire.

They've essentially commissioned an illustration.

[Ms. Toad]

42. You know what they say about assume - ing

Sorry. I couldn't resist

A work made for hire doesn't exist just because one party pays another to do something.

A work made for hire has to fall into a pretty narrow list of categories (not including tattoos, by the way), and the work-made-for-hire agreement has to meet certain conditions.

[jberryhill]

44. One of my pet peeves...

...is the casual use of "work for hire". What has happened is that so many contracts treat non-WFH works "as if" it were a WFH, that a lot of folks think it is automatic.

[Ms. Toad]

45. Yup.

I have had to break the sad news to way too many clients that what they paid for and what they tried to capture by a WFH clause (always written without a savings clause) isn't really theirs. Usually years after the fact when they are trying to sell the company - with the software it developed using independent contractors who have long since vanished...