Man or Canvas? The Question of Bodily Autonomy in Tattoo Copyright and Entertainment Law

Writer: Aidan Larkin


Article Editor: Cassandra Torres

Copyright law is the core of artistic representation in a capitalist society. It is “an inherent aspect of the most individual and valued of democratic rights: creativity. It protects the rights of the creative, provides art to the public, and promotes further development of society.”¹ Copyright law, a subsection of intellectual property (IP) law, protects the rights of creators and is intended to compensate their efforts fairly; however, due to evolving technologies and diverse mediums by which creativity takes form, there is inherent ambiguity in the field of intellectual property law. The deficiency in common and statutory law in the United States that covers this specialization does a disservice to clarifying the ambiguity. As a result, the gray area surrounding ownership of art has caused corporations in the entertainment industry to encounter difficulties, including creative works in secondary media, film, televised productions, and video games.² 

This legal gray area has resulted in an ongoing debate in the entertainment industry surrounding the ethical and legal implications of replicating body art—particularly in the form of tattoos—in media productions, and how to best protect artists and producers’ interests under IP law. Although there is no explicit legal precedent governing this gray area, in most cases regarding the intellectual property art in secondary media, the original artist retains copyright privilege of their piece and receives a generous settlement. The artist retaining exclusive copyright is a generally accepted practice, but complexities emerge in the realm of body art. If the artist retains the privilege of copyright and monetization of their work, the client, unless explicitly stated, unknowingly waives some of their rights. This article asserts that, in these instances where the artist’s rights are preserved first over the “canvas,” the bodily autonomy of the tattooed client is violated.

The client themselves holds virtually no say in matters of copyright unless artistic intellectual property rights are explicitly transferred to the client. As outlined in the United States Code, a copyright owner over a protected work of this type holds five exclusive rights: reproduction, adaptation, distribution, public performance, and public display.³ In the context of a tattoo, this essentially means that the artist retains all the rights of the work, not the client on whom it was commissioned. However, due to the nature of a tattoo, the right to control a work being displayed is often implicitly waived, as the client is constantly displaying the piece on their body. For example, in a recent advertisement for Tonal, a startup that specializes in producing smart home gym equipment, professional basketball player LeBron James demonstrated how an elite athlete can take advantage of Tonal’s digital weight technology.⁴ Despite the fact that his tattoos were on full display in numerous close-ups, no lawsuits emerged from his tattoo artists regarding the placement of their work in the advertisement, even though James was compensated for his spokesmanship for Tonal. 

This demonstrates that, in the case of celebrities, public display in advertisements or on television is often not contested as the tattoo is not being outright monetized—rather, the athlete’s name, image, and likeness are.⁵ This is mainly due to the nature of nonexclusive agreements, defined as an instance where:

[T]he copyright owner grants the licensee “the right to exercise one or more of the copyright owner’s rights but that license does not prevent the copyright owner from granting a license to exercise the same right or rights at the same time or from using the same right(s) him or herself.”⁶ 

A nonexclusive right can be made legitimate through an audio recording or in writing. The nature of an implied right, due to a tattoo artist being aware of the context in which a tattoo can be displayed publicly, is essential to the current status quo in copyright law.⁷ A prime example of this normality at play is in the case of Solid Oak Sketches v. 2K Games (2020). The case revolved around LeBron James’s tattoo being recreated digitally on his avatar in the NBA 2K video game series.⁸ The nonexclusive right between James and his tattoo artist at Solid Oak Sketches entailed that the right to public display was implied and therefore granted to James at the time of his tattooing.⁹ However, issues arose when attempts were made to reproduce the tattoo digitally, which was not in the implied rights granted to James by his artist.¹⁰ 

The client holds virtually zero bodily autonomy in terms of daily activity if they do not have the rights to the tattoo’s copyright. In her discussion of ethical considerations surrounding tattoo copyright cases and balancing the needs of the client and artist, art law specialist Lauren Toccalino writes that tattoo artists “‘enslav[e]’ their human subjects to copyright interests,” and that it “overly broadens the original legislative intent to the detriment of public policy.”¹¹ This analysis reveals that, often due to financial incentives, artists are overreaching legally. Artists, therefore, taint the integrity and purpose of IP law in their litigative efforts and violate the bodily autonomy of clients in the process. As highlighted in the previous paragraph, the default nature of the artist-client relationship leaves individual liberties susceptible to infringement. The absence of a clear decision that outlines the rights of the client ultimately leaves the transfer of rights to the client and artist. This perpetuates the existing unclear legal precedent within this niche of copyright law.

Although a subject paid for the work as a commission and wears it permanently as a part of their individuality as a testament to their personality, the artists hold a “stock” in their client’s body, therefore legally controlling a part of the subject’s body and holding a say on the subject’s daily activity based on the art that was paid for. According to Toccalino, “ownership in tattoos remains confounding because the subject of the work is not simply an inanimate material form, but a living, breathing human being with their own constitutionally enshrined protections.”¹² The gray area that differentiates a human from an inanimate medium on which a work of art is displayed has caused an ethical debate often framed in terms of artist rights versus bodily autonomy. Toccalino proposes an alternative legal standard in order to clear the air surrounding the so-called stock ownership artists currently have over their clients’ bodies: “given the nature of tattoos as original works that fundamentally exist in another rights holder, it would be reasonable to assume that tattoos come with an implied, non-exclusive license to allow for the individual to move about their life freely without fear of legal action.”¹³ This approach could shift the current copyright law regime from favoring artists to a more balanced joint ownership model, granting co-ownership of the body art to the client while allowing the artist to maintain a stake in their intellectual property.

Due to the fact that most tattoo-based copyright cases concern celebrities, corporations are often present in the cases in which the defendant is a figure of popular culture, and the original tattoo artists act as plaintiffs. Corporations have become increasingly interlinked with the name, image, and likeness of celebrities, including tattoos, as a result of sponsorships, digital renditions, video games, and other forms of media.¹⁴ Businesses in the entertainment industry often cite the “fair use” defense, an exception to exclusive rights held by an artist that allows the use of a work without the approval of the original artist, as the justification for their actions.¹⁵ A prominent example of the fair use doctrine being used in tattoo copyright litigation was in Whitmill v. Warner Bros. Entertainment. In this case, a character in the 2011 film The Hangover: Part II had a near, if not identical, tattoo to Mike Tyson’s iconic face design. Since this was a reference to Tyson, the original artist of Tyson’s tattoo filed a copyright infringement lawsuit prior to the film’s release.¹⁶ Warner Bros. cited the fair use defense; they claimed that the tattoo was a parody of the boxer, who made a cameo in the film. According to Mark Litwak:

To successfully invoke the fair use defense, a four factor test must be satisfied… [which includes] “(1) the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes (2) the nature of the copyrighted work (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole (4) the effect of the use upon the potential market for, or value of, the copyrighted work.”¹⁷

The defense was denied based on the fact that the tattoo was identical to Tyson’s, therefore invalidating any claims of parody. Moreover, Solid Oak Sketches invokes a similar use of the fair use defense as Whitmill does.¹⁸ Regarding the first factor of fair use, the defendant argued that “the tattoos are used for a different, transformative purpose of realistically depicting individual NBA players.”¹⁹ In response to this defense, legal scholar Yolanda King claims that: 

The defendants appear to be using the copyrighted tattoos for the…same purpose and function as the original creations—to adorn the bodies of individual NBA players—albeit in the different context of the virtual world, instead of the real one. Merely changing a work from one medium to another is not sufficiently transformative under the first use factor.²⁰

Because the tattoo remained unchanged and although it is being used to portray athletes more realistically in the video game, the first factor is not present, rendering fair use not applicable. 

Clearly, just because one has a tattoo does not necessarily mean they own the tattoo. The ownership of body art is quite complex through a legal lens, and the application of tattoos in other forms of media is just as complicated. Although technically legal, the current copyright regime is disadvantageous and unjust to the more than thirty percent of Americans who report having at least one tattoo.²¹ Artists should maintain some degree of ownership over their work, and while their credit should be attributed to works of body art, personal liberties are infringed upon when the artist holds an unjust degree of control over their former clients’ daily lives. While there are several potential approaches to combat this issue, including the joint-ownership model as stated above, some have criticized the Western ideological nature of copyright writ large. Art and cultural scholar Leon Tan asserts that “Creation is for all intents and purposes understood as the non-derivative work of an individual person, an author, painter or musician, for example, and tends to be underpinned by another concept, namely, individual property ownership.”²² Tan, along with other scholars, have criticized the practice of copyright, trademark, and other forms of intellectual property rights, claiming they create a capitalistic environment that does not promote true creativity.²³ Cultural critics have argued that individualism and cultural diversity shine through art, and it is through art that one can show membership to a larger collective, or something larger than oneself, especially tattoos.²⁴ In understanding the relationship between the client’s bodily autonomy and legal protections for the artist’s original design within the context of Western intellectual property rights, one can find discrepancies that seem to be illogical and worth reevaluating in an effort to support an IP system that can adapt to a constantly evolving entertainment industry. Although this article does not seek to overhaul the current Western copyright regime, it highlights a potential avenue of future research.

1. Leslie Aboud, Who Owns the Ruby Slippers? An Analysis of the Impact of Warner Bros. v. X One X on Visual Depictions in Copyright Law, 38 J. Corp. L. 399, 399 (2013). ↩︎
2. Arianna D. Chronis, The Inky Ambiguity Of Tattoo Copyrights: Addressing The Silence Of U.S. Copyright Law On Tattooed Works, 104 Iowa L. Rev. 1483, 1506 (2019). ↩︎
3. 17 U.S.C. § 106. ↩︎
4. LeBron James: Powered by Tonal, Tonal (Oct. 2022), https://tonal.com/blogs/all/lebron-james?srsltid=AfmBOoqNlO-hCitzPuf1EuMLe9B3kWINC81G0G-yyhNS7GmY99lM3DXO.
   ↩︎
5. Id. ↩︎
6. Chronis, supra note 2, at 1491. ↩︎
7. Chronis, supra note 2. ↩︎
8. Solid Oak Sketches v. 2K Games, 449 F. Supp. 3d 333 (S.D.N.Y. 2016). ↩︎
9. Id. ↩︎
10. Id. ↩︎
11. Lauren E. Toccalino, Human Canvases: The Implications of Copyright Law in Body Art, 34 Intell. Prop. J. 61, 78 (2021). ↩︎
12. Id. at 72. ↩︎
13. Id. at 78. ↩︎
14. Mark Litwak, The Hangover II: Tyson Tattoo Copyright Infringement Suit, Ent. L. Res., https://www.marklitwak.com/the-hangover-ii-tyson-tattoo-copyright-infringement-suit.html. ↩︎
15. Id. ↩︎
16. Verified Complaint for Injunctive and Other Relief, Whitmill v. Warner Bros. Ent. Inc., No. 4:11-CV-752 (E.D. Mo. dismissed 2011). ↩︎
17. Litwak, supra note 14. ↩︎
18. Solid Oak Sketches, supra note 8. ↩︎
19. Yolanda M. King, Solid Oak Sketches V. 2K Games: Is This Lawsuit the Beginning of the End of Uncertainty Concerning the Enforceability of Tattoo Copyrights?, 1 Interactive Ent. L. Rev. 62, 65 (2018). ↩︎
20. Id. ↩︎
21. Toccalino, supra note 10, at 63. ↩︎
22. Leon Tan, Intellectual Property Law and the Globalization of Indigenous Cultural Expressions: Māori Tattoo and the Whitmill versus Warner Bros. Case, 30 Theory, Cult., and Soc’y 61, 66–67 (2013). ↩︎
23. Id. ↩︎
24. Id. ↩︎