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 the 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 the depictions of tattoos in video games. 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.
In 2016, 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. In March 2020, a federal judge ruled that Take-Two Interactive could not be sued for copyright infringement over the use of Lebron James’ and other players’ tattoos in its NBA 2K video game.
The court reasoned that because tattoo artists know that the tattoos of famous athletes are likely to be displayed in public, they necessarily granted the players a non-exclusive license to use the tattoo as part of their likeness. In addition, the court found the use to be de minimis and transformative fair use.
Additionally, in a similar case filed in 2020 centered on the use of wrestlers’ tattoos in the WWE 2K games, an Illinois federal judge sided with a tattoo artist.
During its analysis, the court addressed de minimis use, fair use, and whether the game had an implied license to use the work. The court rejected the video game maker’s motion for summary judgment, finding that there were triable issues of fact related to its transformative fair use defense.
For example, if you select an artist who is known for crafting custom one-off tattoos, and you decide to get an original piece from them, this tattoo would be considered the artist’s intellectual property in the eyes of the law. Now, this doesn’t mean that you can’t take photographs of your new tattoo, or show it off, but if your custom tattoo is used in a commercial sense, or is tied to any promotional material, then there could be grounds for a lawsuit where the artist would most likely win.
To determine whether or not your tattoo is covered by copyright it must be shown to meet certain criteria. For a tattoo to be protected under copyright it must be original to the artist and it must be shown to possess at least a minimal amount of creativity. If you assisted your artist in the actual design and layout of your tattoo, then the tattoo is considered a collaboration, in which case both of you would “own” the rights to the piece.
While it is certainly possible to get tattoos of copyrighted images, there are some risks and objections when it comes to this practice. From Disney character tattoos to your favorite brewery’s logo, copyrighted images in the form of tattoos can create problems, so it’s important to be aware of the potential risks, particularly for artists.
From a legal standpoint, tattooing a copyrighted image upon someone’s skin could cause issues down the road, but it’s not a likely occurrence. For the copyright holder to successfully pursue a lawsuit against an artist, the copyright holder would have to prove that the use of their image by the artist has negatively impacted their business by either devaluing their work or affecting the potential market where their work is used.
So, if you decided to get your favorite cartoon character as a piece of permanent art, there is a potential risk that the illustrator could sue the tattoo artist for “devaluing their work”. If you’re curious about how this makes for a solid legal argument, it’s because the illustrator could argue that they would like to distribute and profit from flash designs or custom imagery sold to tattoo artists and clients. If the tattoo artist is replicating the illustrator’s design themselves, it prevents the original creator from profiting off their own work, thereby devaluing it. Without asking the illustrators permission to use the copyrighted design, it is possible that they may become offended, or even pursue legal action, so it’s always best to secure permission before recreating anyone’s original work.
