Copyright problems in tattoo and graffiti art
This is a great article on the copyright issues raised by tattoo art. It also made me think that the four “bizarre outcomes” listed by copyright guru, David Nimmer, are similar in the area of graffiti art (at least graffiti done without permission),
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With particular respect to celebrity and athlete tattoos, magazines, TV networks, documentary film makers and others could be required to obtain licenses from tattoo artists behind the celebrity’s or athlete’s tattoos. If those licenses are not obtained, the celebrity or athlete herself could be liable for contributory infringement.
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An adjacent or overlapping tattoo might constitute a derivative work, which could itself be an infringement of the original artist’s rights. Nimmer suggests this could lead to a court order to have the offending work laser removed.
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The Visual Artists Rights Act allows certain works of art to be granted “recognized stature,” which allows an artist to prohibit intentional or grossly negligent destruction of a work. Under this Act, if a tattoo were granted “recognized stature,” the artist could obtain a court order barring removal or destruction of the tattoo.
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Even if the tattooed person goes so far as to obtain an exclusive license of all rights from the artist, that does not necessarily solve the issues described above. Some copyright licenses can be subject to an inalienable right of the artist to terminate the license 35 years after grant. As Nimmer explained, “For example, a 20-year old actress might get a tattoo from X, subject to his agreement (negotiated by her counsel) to assign to her all copyright interests in the image and never to terminate the grant. When she turned 55, she might nonetheless be shocked to learn that X now has the right to block merchandising of her image.”
Now, what would happen if the graffiti was also done on an individual’s motor vehicle? Would this individual also be barred from painting their vehicle back to the original color? If this individual changed other elements of their vehicle, such as wheels, hubcaps, or decals, would this be a derivative work?