This essay aims to examine the
possibility for tattoos to be protected by copyright as artistic works. Copyright
is an intellectual property protection granted by the legislations of Common
Law countries such as the United Kingdom and the United States. The basic
framework regarding copyright in the United Kingdom can be found in The
Copyright, Designs and Patent Act 1988 (CDPA), and for the United States of
America, in the Title 17 of the United States Code. The copyright protection
covers “original works of authorship
fixed in any tangible medium of expression”1.
As a consequence, for a work to be protected by copyright, it has to be part of
one the CDPA listed categories, be original and fixed on a tangible medium. Once
the copyright is granted, it gives an exclusive right to the author of a
cultural creation. In other words, the use of this protected work is strictly
Tattoos can be defined as the permanent image, pattern, or word on the
skin that is created by using needles to put colours under the skin2.
The question regarding the copyright protection of tattoos and makeup has risen
due to their growth of popularity. Indeed, if tattoos have been drawn on humans
for thousands of years, it is nowadays considered as having a fashion and artistic
meaning. Noticing this booming of the tattoo industry, Aaron Perzanowski
highlights that more than sixty-five million Americans have at least one tattoo3.
To mark the human bodies is nowadays a real trend. This trend can be seen in
the creation of a significant number of journals and magazines focusing on
tattoo artist and their works (e.g. Inked
Magazine founded in 2004). Similarly, several American TV series use
tattoos for their plot (e.g. “Blindspot”
where the tattoos drawn on the whole body of a woman are a clue to a crime4,
“Prison Break” in which the main
character tattooed the plans of a prison on his whole body etc.). In the art
world, various exhibitions on tattoos have been organised around the world,
such as the one taking place in the National Maritime Museum Cornwall “Tattoo: British Tattoo Art Revealed” or
“Tatoueur, tatoués” at Musée du Quai
Branly in Paris. This French exhibition notably aimed to put forward the
artistic meaning of tattoos.
However, unique issues have arisen as a consequence of this increasing
interest for tattoos. It is, indeed, still a challenge for courts to solve
disputes involving the copyright protection of a tattoo and to determine the
ownership of this right. Tattoos involve the human body as a medium of
expression. As a consequence, unique issues arise regarding their protection. In
recent cases, the Courts, especially the ones from the United States, had to
solve these various issues.
1 Copyright Law of
the United States, and related Laws contained in Title 17 of the United States
Code, December 2016 (U.S.C), §101.
2 Cambridge Dictionnary.
3 Aaron Perzanowski, ‘Tattoos & IP Norms’ (2013) 98
Minn. L. Rev 511,591.
4 Yolanda M. King, ‘Protection and Enforcement
Challenges for Tattoo Copyrights’ (2016) 39 Colum. J.L. & Art 437,440.