By Debby Winters
I recently read an article in my local newspaper about copyright on tattoos. Earlier that week I received a question in a class that I teach about copyright and how it relates to teaching. Maybe it is time for a review of copyright law and how it affects our everyday lives.
The truth of the matter is that copyright law is the most straightforward of all the Intellectual Property laws. It protects any original expression that exists in a tangible form. What it does not protect is general ideas or procedures. While it is not required to have a copyright registration with the U.S. Copyright Office, taking this additional step beyond creation, where copyright arises, ensures that these legal rights can be enforced should someone infringe upon your work.
The basic thought behind copyright is that you always need permission to use another person’s work unless an exception applies. The most common exception is what is termed fair use. The determination of whether a use of a copyrighted work is within fair use depends upon making a reasoned and balanced application of the four fair use factors set forth in Section 107 of the U.S. Copyright Act. Those factors are
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
While fair use is intended to apply to teaching, research, and other such activities, an educational purpose alone does not make a use fair. Based on the fair use provision, using another’s work in teaching is not an infringement of copyright. While that is true, it is always a good idea to acknowledge the person who created the work.
Let’s move on to the tattoo situation. The article discussed the very distinctive tattoo that Mike Tyson has on his face. Warner Bros. recreated a very s
imilar tattoo for Ed Helms’ character in The Hangover Part II. The tattoo artist that created Mike Tyson’s tattoo sued Warner Bros. This was not the first time a case like this has come about. Last year a tattoo artist sued video game maker Electronic Arts and former Miami Dolphin running back Rickey Williams over a tattoo. This case was settled before going to court but has been controversial in the football world due to the large number of NFL players who sport distinctive tattoos. The case over The Hangover tattoo also settled out of court. Since these cases have settled, we have no court decisions on this issue yet.
One question that arises, among others, is whether one person can own an integral part of another person’s body. Another question is whether the human body constitutes a tangible medium, something that is required for even common law copyright to arise. Since a tangible medium is usually taken to mean that it just has to be written down in some way and to persist for more than a transitory duration, even the human body would meet the standard. But what rights attach to this form of copyright remains unclear. As more and more people in our society get tattoos, this will be an interesting area to in the future. Which way will the courts go with this one?