It is only one example of many, but it grasps the very essence of the issue: In 2013, a New York City coffee shop owner got a tattoo on his right hand saying “I [coffee cup] NY.” Cool, if you are a tattoo fan who also loves coffee. Then he started using an illustration of his tattooed hand as a logo for his shop. Not cool, if you are the New York State Department of Economic Development, which served him with a cease-and-desist letter. In the eyes of the state agency, the use of the tattoo design on the shop’s window was less a reference or a tribute to the famous “I love NY” slogan but rather a plain case of trademark infringement.
Yes, copyright and trademark issues may even emerge from someplace as personal as your skin and the ink decorating it. But there is more to the story.
Tattoos Are Copyrightable
A tattoo is a work of graphic art and thus is, in principle, copyrightable. The copyrightability in each case will, of course, depend on whether the tattoo artist managed to meet copyright law’s originality threshold, which is arguably a rather low bar to pass. One can, therefore, safely assume that quite a few ink drawings on body parts could be considered works of art subject to copyright protection.
That is why, for example, National Football League Players Association (NFLPA) officials began advising NFL players to get copyright waivers from their tattoo artists. A case that drew some media attention was the suit filed by Stephen Allen. Allen, a Louisiana-based tattoo artist, sued video game publisher Electronic Arts (EA) and former Miami Dolphins running back Ricky Williams over a tattoo that Allen put on Williams’ bicep and which later appeared on the cover of EA’s “NFL Street” video game.
The topic of this blog gets even more complicated when considering that some avowed admirers of certain corporate brands reportedly show their loyalty by getting the trademarks inked on their skin. This phenomenon has even spawned a new word—“skinvertising.”
A Look Ahead
Even though the cases above took place in the United States, sooner or later European Courts will have to deal with similar issues because millennials worldwide love a few dots of ink on their body. Some interesting questions of law arise: For example, what is the extent of requests that a cease-and-desist claim could contain? Could the copyright holder of a work of tattoo art demand someone who has that tattoo cover it in every photo of himself that he posts to Instagram? Courts should be prepared to have answers to those kinds of questions.
This article was originally published on AllAboutIP – Mayer Brown’s blog on relevant developments in the fields of intellectual property and unfair competition law. For intellectual property-themed videos, Mayer Brown has launched a dedicated channel available here.