Is It Legal To ‘Own’ A Tattoo On Someone Else’s Body?

And the issue isn’t limited to celebrities and athletes. For example, Sam Penix, a coffee shop owner living in New York, was threatened with a trademark infringement lawsuit in 2013 based on the “I [coffee cup] NY” tattoo he has across his fist. Penix’s shop logo featured his tattooed fist grabbing a coffee portafilter between the words “Everyman Espresso.” The New York State Department of Economic Development, which owns the “I ♥ NY” trademark, sent Penix a cease-and-desist letter because it believed the logo infringed its trademark. To avoid being sued, Penix agreed to several terms, including some restrictions on how his fist could (and could not) be photographed.

[referenced url=”https://www.lifehacker.com.au/2014/09/how-effective-is-picosure-tattoo-removal-video/” thumb=”https://www.lifehacker.com.au/wp-content/uploads/sites/4/2014/09/Tat2-410×231.jpg” title=”How Effective Is PicoSure Tattoo Removal? [Part 1]” excerpt=”CynoSure is a global leader in laser technologies that recently launched in Australia through Dr Pico (Darlinghurst, Sydney). It uses a picosecond aesthetic laser dubbed PicoSure to shatter ink into tiny particles without leaving scarring or burns. Last week, we accompanied a Lifehacker reader during her first PicoSure treatment. Check out the video to see the results unfold firsthand.”]

As director of the Drake University Law School Intellectual Property Law Center, I’ve researched this area extensively. Some complicated legal issues stem from applying traditional law to this nontraditional type of property. Based on current law, the standards set by these cases can affect countless daily activities for people with tattoos, including how they are depicted, photographed or recorded. Despite common sense to the contrary, copyright law and trademark law technically allow for such limitations on a person’s freedom.

Copyrighted art you wear on your skin

If a creation is copyrightable, the default legal standard is that the person who created it owns it.

To receive copyright protection, a creation must meet three requirements: It must be a work of authorship, it must be original and it must be fixed. Under widely accepted theory, tattoos can meet each requirement.

First, the term “work of authorship” includes art. Tattoos, by nearly every interpretation, can be considered art under the law.

[referenced url=”https://www.lifehacker.com.au/2016/08/is-it-legal-for-your-employer-to-fire-you-over-your-tattoos/” thumb=”https://www.lifehacker.com.au/wp-content/uploads/sites/4/2016/08/iStock_44053810_MEDIUM-410×231.jpg” title=”Is It Legal For Your Employer To Fire You Over Your Tattoos?” excerpt=”Gone are the days when only bikies and sailors marked up their skin. Tattoos are now considered a legitimate type of art that you can carry around with you to showcase proudly. You’d think that modern workplaces are generally quite accepting of body art so long as they’re discrete or covered up. But if your employer had an issue with your tattoo, is it legal for them to fire you over it? Let’s find out.”]

Second, regarding originality, courts require that a work be independently created and be “minimally creative.” The Supreme Court has held that most things “make the grade quite easily” under this very low bar. Therefore, tattoo artists who design tattoos themselves will almost always meet this requirement.

Third, “fixation” requires that the work be created on something that a person can see and perceive more than momentarily. Tattoos by their very nature (and to some people’s chagrin) are permanently placed on human skin and can be seen by someone nearby.

Given these basic requirements, a tattoo can be protected by copyright law, and the creator of that tattoo owns the resulting rights. These rights include the ability to keep others from displaying, reproducing or creating new works based on the original tattoo or one that is substantially similar. This would include things like photos, videos and artwork that use the tattoo.

Corporate shill or tattooed trademark violator?

Under trademark law, nearly anything can be a trademark, including words, names, symbols or devices. Trademarks are used to protect the trademark owner’s goodwill and reputation developed through the trademark and to help the public identify where products and services come from.

In some cases, people decide on their own to ink themselves with their favorite company brands. Some corporate trademarks make for popular tattoos among brand loyalists, including the Harley-Davidson crest, Ironman “M-Dot” and Nike swoosh. In other instances, companies encourage employees to tattoo themselves with the corporate trademark by offering financial benefits. In either case, individuals with trademark-based tattoos can find themselves exposed to an infringement lawsuit.

[referenced url=”https://www.lifehacker.com.au/2014/12/picosure-laser-vs-the-dragon-tattoo/” thumb=”https://www.lifehacker.com.au/wp-content/uploads/sites/4/2014/12/IMG_0410-410×231.jpg” title=”Dr Pico Versus The Dragon Tattoo [Part 2]” excerpt=”Over the past three months, “Dr. Pico” has been engaging in a furious battle with an ugly blue dragon called Spyro. His weapon of choice is a picosecond aesthetic laser — the perfect tool to combat dragons made out of ink. Can he emancipate the innocent lady held in its clutches? Click on the video to watch their latest clash unfold!”]

A trademark infringement claim requires showing that:

1) the tattooed person is using a reproduction or copy of the trademark;
2) the tattooed person is in commerce without permission; and
3) the use is likely to cause confusion.

Under this standard, nearly anyone with a trademark-based tattoo could be subject to a trademark lawsuit.

Consult your lawyer before you enter. [Image: Thomas Hawk]

Cover yourself?

Athletes, entertainers and other public figures are probably most at risk of violating copyright or trademark law through their body art. By virtue of their careers, these figures are regularly in the public eye and using their physical appearance, skills and bodies to market themselves and the goods and services connected to their livelihoods.

But, the nonfamous may also find themselves using trademark tattoos in commerce through photos and marketing materials related to their own companies, similar to Sam Penix. In addition, because the internet and social media have made nearly every contact a potentially commercial endeavor, many people could find themselves exposed to trademark infringement lawsuits based on their tattoos.

[referenced url=”https://www.lifehacker.com.au/2016/02/is-it-legal-to-cosplay/” thumb=”https://www.lifehacker.com.au/wp-content/uploads/sites/4/2016/02/princess8n-4-web-410×231.jpg” title=”Is It Legal To Cosplay Characters You Don’t Own?” excerpt=”Cosplay has existed as a hobby for decades now — with most people having ‘cosplayed’ in some way or another for costumed events or parties. Now that people have started making money from it, cosplay’s legal status has been thrown into question as a practice that leans heavily on using various companies’ intellectual property.”]

According to current trademark law, if a person is ultimately found liable for trademark infringement, he or she could be required to pay money damages, court costs and attorney fees. A court could also require that the person stop using the trademark as well as destruction of infringing items. In the trademark-based tattoo context, one can imagine how practical issues might come in to play. Could a court, for example, require tattoo removal? Though highly unlikely, the plain language of the law does not foreclose such an option. What is more likely is that a person may be precluded from displaying the tattoo in commercial photography and appearances.

Until courts and legislators create innovative legal solutions, both tattoo artists and people with tattoos should consider copyright agreements that specifically outline who owns a resulting tattoo. People with trademark tattoos should be aware that displaying their tattoos visibly in commerce could lead to liability. Otherwise, tattooed skin may end up with several owners with competing interests – and even if you live within that skin, you may not own the art that adorns it.

Shontavia Johnson, Professor of Intellectual Property Law, Drake University

This article is republished from The Conversation under a Creative Commons license.