Tattoos are commonplace among Americans, and especially millennials. According to a 2017 research by the Pew Research Center, 38 percent of 18- to 29-year-old Americans have at least one. While many people get tattoos of simple designs, a significant amount of people, particularly celebrities and athletes, have incredibly complex tattoos that can be considered original works of visual art, protected under copyright law. However, unlike most forms of visual arts, tattoos are placed on human skin. The question then arises – who owns the copyright to that artwork, the tattoo-er or the tattto-ee? And if tattoos can be copyrighted, do tattoo artists also get moral rights to their work? What would be the consequences of granting full copyright protection of tattoos?
A recent decision by the Southern District of New York held that the portrayal of tattoos on NBA sports players in video games constitutes fair use, thus not violating the tattoo artists’ copyrights. Though this case came as a win for the tattoo-ees, the court’s holding is still based on the underlying rationale that tattoos can be fully copyrighted. As a result, if following this reasoning, each future case involving use or reproduction of tattoos will turn on the fact-intensive question as to whether the use in those circumstances constitutes fair use or unauthorized reproduction subject to monetary liability. Nevertheless, because of the unique form of tattoos as fixed onto another person’s skin, granting full copyright protections for tattoos could have dire consequences.
First, transactional costs will be enormous if tattoo artists are granted exclusive copyrights to distribute copies of and publicly display the tattoo that are fixed to their clients’ skins. The tattoo-ees could be potentially violating the tattoo-ers’ copyrights every time they appear in the public with their tattoo uncovered. This would be a huge problem for people who make a significant amount of income from their public appearances. Especially, in this era of booming social media communications, an increasing amount of people are becoming public figures and making money from appearing in front of the public. For example, if you got a tattoo on your neck at your eighteenth birthday, and ten years later, you became a famous YouTuber with a significant amount of income deriving from making makeup tutorial videos, then the person who tattoo-ed you ten years ago could hold you liable for copyright violations of his work. To avoid paying considerable monetary damages to the tattoo-er, you probably will have to track him down and pay him a significant amount of fees to buy the copyright of the tattoo from him and avoid being sued for copyright violations.
Furthermore, granting copyrights to tattoo artists for their tattoo works on human bodies inevitably implicates moral issues. The conflict between the tattoo-er’s moral rights and the tattoo-ee’s bodily autonomy can raise serious legal questions. The Visual Artists Rights Act (VARA) gives an author of a visual artwork the right to “prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to the author’s honor or reputation.” If, following the grant of copyright protection of tattoos, moral rights protection is extended to tattoo artists, then the tattoo-ees will no longer have the right to alter, modify, or destroy the tattoo without the tattoo artists’ permission. Human skin, where the tattoo is fixed, is different from most of the places where traditional forms of visual artwork is displayed, e.g. sculpture, painting, film, and etc. Enforcement of this provision of VARA will be in direct conflict with individual autonomy and can potentially impact numerous human rights of the tattoo-ees.
Though many tattoos are unique and original work of art in a tangible medium of expression, their unique form of display makes it problematic to grant full copyright protection. Tattoo artists should be recognized and rewarded for their originality and have means against unauthorized reproduction of their work. Nonetheless, granting full copyright protection under the current legal framework is not a sound solution.
 Breuner CC, Levine DA; AAP Committee on Adolescence. Adolescent and Young Adult Tattooing, Piercing, and Scarification. Pediatrics. 2017;140(4):e20171962 - February 01, 2018.
 Solid Oak Sketches, LLC v. 2K Games, Inc., No. 16-CV-724-LTS-SDA, 2020 U.S. Dist. LEXIS 53287 (S.D.N.Y. Mar. 26, 2020).
 17 U.S.C. §106(A)(2)