Mid 2011, and in the USA, a tattoo artist, S. Victor Whitmill filed a lawsuit against Warner Brothers Entertainment, Inc for copyright infringement in that one of the characters in the movie “Hangover Part 2,” wakes up after a raucous night out only to find that he has a tattoo on his face, identical to Tyson’s Maori-inspired tattoo, the very tattoo that Whitmill himself personally created.  The tattoo artist claims that he never gave Warner Brothers permission to reproduce his ‘artistic work’ in the movie, and such usage was therefore unlawful and amounted to copyright infringement.

Some interesting copyright issues were raised in the initial proceedings, but the Court never gave its final ruling in the matter, as the parties settled (the terms of which have not been disclosed).  The interesting issues that were considered during the preliminary stages of the matter include the following, and are worth exploring further (and with reference to South African law):

• Does copyright subsist in relation to Tyson’s tattoo?

• Are tattoos in general entitled to copyright protection?

• If so, how broad are an artist’s rights over a tattoo and subsequently the rights of the person to whom such tattoo is applied?

With reference to the above points, one has to first consider if Tyson’s tattoo is an original work and whether it has been reduced to material form, particularly with regard to its application to human skin (regard is had to section 2 of the Copyright Act 98 of 1978 which stipulates the conditions upon which make a work eligible for copyright).

Some legal commentators argue that there are difficulties that arise when the tangible medium of expression in which the artistic work has been reduced is human skin.  Some difficulties that may arise include the following, which were considered in the S. Victor Whitmill v Warner Brothers Entertainment, Inc case

• Can the tattoo artist restrict the bearer of the tattoo from displaying his/her body in public?  Surely this is contrary to the tattoo bearer’s personal right to the use of his/her own body.  Professor David Nimmer, a copyright expert who drafted a declaration that was used in the S. Victor Whitmill v Warner Brothers Entertainment, Inc case stated in his declaration that by allowing tattoos to be to be the subject of copyright protection “copyright law thereby becomes the instrument to impose, almost literally, a badge of involuntary servitude, akin to the mark with which ranchers brand the cattle they own.”

• Can the tattoo artist insist that the tattoo bearer share the profits of the exploitation of any picture of the tattoo bearer that appears in a magazine or press release where the artistic work is visible? This creates a further anomaly whereby if Mike Tyson authorizes the making of a documentary based on his life and professional boxing career, for example, he could be considered to be a contributory copyright infringer and liable to pay damages to the tattoo artist for allowing the artistic work to be reproduced (if reproduced without the tattoo artist’s authorization).  Again this seems to violate a human being’s personal right to one’s own body, as well as creating a situation whereby the tattoo bearer is held hostage by the tattoo artist.

Some legal commentators, including Professor David Nimmer, the US copyright expert mentioned above, have therefore argued that tattoos should be exempt from copyright infringement on the basis that such use constitutes “fair use” (in South Africa the synonymous term is “fair dealing” – although different consideration apply to what constitutes “fair dealing”) in that it gives one the right the personal right to one’s own body which ultimately supersedes copyright law.  It is argued that copyright protection should not be granted to works whereby the medium of expression is a live human being.

It is possible however that the tattoo issue is less controversial than these comments and commentators indicate.

A similar issue arises where an independent party is commissioned to devise the artwork for a new corporate identity or trade mark for a business.  In these circumstances, the parties clearly understand that the work is being created for the sole and exclusive benefit of the commissioning party and that it is being created for the express purpose of the commissioning party using it, in trade, to distinguish its product or its trading identity, as the case may be, from that of other traders.  Such a circumstance gives rise to a tacit copyright licence in favour of the commissioning party.  It appears that a party commissioning a tattoo is vested with a tacit licence to use the tattoo - at least in so far as the tattoo appears on that person’s body in whatever social or commercial context he or she sees fit or chooses.

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Tacit licences however invariably give rise to uncertainties, especially in regard to their scope and extent.  In order to avoid such difficulties, which by their nature lend themselves to authors of body art/tattoo artists attempting to restrict tattoo bearers from exploiting their body art, particularly if a tattoo bearer enjoys celebrity status,   before a tattoo is inked onto a person’s skin, that person should ensure that an appropriately wide licence is obtained for him or her to exhibit the tattoo, as it appears on that person’s body, in whatever context they want, for whatever purpose.

To the extent that such licences do not adequately address all the issues and permutations that arise, legislative intervention is clearly required to address the issue.