It Just Gets Under my Skin

By Bob Prosser, subject to a creative commons license

So you finally got hired to do a cool ad shoot. You find some edgy looking models, including a good looking dude with a really original looking tattoo along his right arm. You make sure to get full model releases from everyone. Your work is first rate; the agency is happy. They really love the shot of the guy’s tattoo right next to the product. You cash the check. The spread runs in some national magazines and shots also appear in a couple of newspapers. Everyone especially loves the hunky guy with the wicked tattoo. Your Blackberry is buzzing all the time…

Then you get sued… By the artist who created that wicked tattoo… The guy wants a million dollars for copyright infringement!

What!?

COULD THAT REALLY HAPPEN!!!???

Maybe. Check out this intriguing piece in  New York Times.

The story raises too many issues to address  here. Assuming you aren’t photographing only the tattoo — close up — I don’t think you are at real risk. Fair use would seem to be a viable defense. The obvious tension between the tattoo artist’s copyright and the model’s right to make commercial use of her  likeness would seem to me to strengthen a fair use defense when the model has given a release.

Here’s a good discussion of the fair use defense  available to the studio in the Hangover II Mike Tyson case covered in the Times‘ article.

But imagine… As a practical matter I might now have to advise a photographer not to use a model with a visible tattoo without getting a tattoo release. Of course, you need that release from the original owner of the design’s copyright, and not just the the guy who inked the model’s arm. How would you ever know????

This Freakonomics post brings some common sense to the issue. Sadly, the law often shows very little respect for common sense.

At least one copyright lawsuit by a tattooist (against the NBA in 2005) got far enough to reap the artist a settlement. Note the hostile tone of the piece toward the artist. Apparently if someone features your art in a major advertising campaign you’re just greedy to want compensation… After reviewing other articles on the subject… Tattoos seem to get little respect as art. Many commenters to pieces about the Hangover II case seem to think tattoos aren’t deserving of copyright protection. Why?

Oh, in case you wondered, tattooing is protected by the First Amendment. In Massachusetts, for example,  a state law banning tattoo parlors was  overturned on free speech grounds in 2001.

Flickr Girls with Sexy Tattoos! 

Original by ALAN ANTIPORDA, remixed by me, subject to a creativecommons license.

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