Answer: Yes, tattoos can be protected by copyright.
Copyright can protect pictorial and graphic works so long as they are fixed in a physical object and display originality. Since tattoos are, by definition, fixed—Merriam Webster defines a tattoo as “an indelible mark or figure fixed upon the body by insertion of pigment under the skin or by production of scars”—the threshold question in determining if a particular tattoo is protected by copyright is whether the tattoo is sufficiently original. In the context of copyright, originality doesn’t necessarily mean “novel.” Instead, it requires that the expression be original to the author (i.e. it cannot be copied from someone else), and it must possess at least a minimal amount of creativity.
This issue becomes complicated in the context of video game depictions of tattoos. In 2012, Christopher Escobedo, a tattoo artist based in Arizona, sued THQ, Inc., the makers of the video game UFC Undisputed 2010, for its depiction of a tattoo that Escobedo designed and tattooed on the torso of Carlos Condit—who was at the time the “interim Ultimate Fighting Championship (“UFC”) Welterweight Champion.” The case was ultimately settled out of court.
Last year, tattoo company Solid Oak Sketches sued Take-Two Interactive for copyright infringement based on the company’s depiction of Lebron James’ tattoos in the game and cover art for the game. That case is still ongoing.
While some agree that this kind of copying infringes the rights of the tattoo artist, others argue that it constitutes fair use or that there is an implied right that allows this sort of reproduction. Since these issues have yet to be litigated in federal court, it’s unclear how courts will resolve these issues. What is clear, however, is that so long as a tattoo meets the requirements for originality, it is protected by copyright.
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The information provided by the Copyright Alliance in this blog post is intended to educate you about copyright law and policy. The Copyright Alliance is not a law firm. We do not provide legal advice and this blog post does not create or constitute an attorney-client relationship. Please see more here.