Amber Duan
Body art should not be copyrightable subject matter. Applying copyright protections—such as reproduction and public display rights—to body art imposes legal ownership implications over a person’s body and undermines their autonomy. This problem stems from the nature of intellectual property itself, which functions as a property-based system assigning owners the power to exclude and control.[1] While that structure works for media like music or photography, it becomes entirely inappropriate when applied to body art.
Society maintains a longstanding taboo against treating the human body as property.[2] This principle is embedded in the Thirteenth Amendment and broader norms that reject ownership of another’s physical self. Extending copyright to body art allows artists to restrict what people do with their bodies. Unlike other mediums, body art cannot be separated from its “canvas.” This indivisibility makes property-based frameworks conceptually and ethically fraught. Thus, copyrighting body art undermines societal values concerning bodily integrity and personal freedom.
Tattoo artists themselves have traditionally resisted ownership claims.[3] Copyright registration for tattoos has been rare, and infringement lawsuits almost nonexistent until recently. As scholar Aaron Perzanowsky notes, many tattooists believe asserting control over a client’s use of their tattoo contradicts the spirit of tattooing, which is about bodily expression and self-possession.[4] However, the rise in lawsuits involving celebrities and media companies signals growing interest in copyright claims where financial stakes are high.[5] This shift highlights the urgency of developing a better legal framework.
Authorship Without Ownership
Dismissing copyright for body art doesn’t mean abandoning legal protection for artists. Instead, a non-property-based framework—authorship without ownership—can protect artists’ interests while preserving the bearer’s autonomy. This model decouples recognition of creative labor from an ownership right. It acknowledges the artist’s intellectual labor without infringing on the bearer’s bodily autonomy.
Protective laws like the Copyright Act function by granting artists two sets of rights: moral rights and economic rights. These rights can be preserved for body art creators through mechanisms that don’t rely on ownership logic.
- Moral Rights via Defamation Law
The purpose of moral rights is to credit the author and protect their reputation. When Congress passed VARA, it aimed to preserve the honor and integrity of artistic works.[6] Even if body art is excluded from copyright, artists deserve recourse when their reputations are harmed. A reputational injury arising from destructive alterations to a work parallels defamation injury resulting from false statements made by others; thus, it can be addressed through defamation law.[7]
If a tattoo is altered and falsely attributed to the original artist—especially in commercial contexts—the artist could pursue a defamation claim. This would not limit the bearer’s right to modify or remove the tattoo but would prohibit misattributing the altered work in a way that harms the artist’s reputation. Remedies could include damages or injunctive relief, but the injunction would target only the false attribution, not the alteration itself. This preserves the bearer’s autonomy while protecting the artist’s name and reputation.
Defamation claims may still discourage certain actions by body art bearers, but such limitations are reasonable. The goal is not unrestricted bodily freedom, nor to reject all regulation of body-related choices. Many laws already intrude on autonomy. What matters is that these limits don’t arise from property-based claims over the body. Defamation law focuses on attribution, not ownership. It protects artists’ authorship by prohibiting false association with unwanted modifications.
- Economic Rights via Just Remuneration and Prize Funds
Artists’ economic rights can be upheld through just remuneration.[8] Compensation would be tied to the initial transaction. Since artists can’t rely on future royalties, they would charge more upfront—especially when the work is likely to be publicly or commercially displayed. This shifts the economic value of the art to the original deal and avoids later disputes over usage.
Artists may also gain exposure when their work appears in media, which can enhance their reputation and bring in future business.[9] For more substantial commercial uses such as tattoos featured in films or advertisements, a publicly funded prize system—the sort used in the patent system--could supplement remuneration.[10]
The fund would be financed by a luxury tax on body art services. It would not confer ownership but recognize artistic contributions when used at scale. Eligibility would depend on whether the tattoo was used for its artistic value—not just as part of the bearer’s image—ensuring the fund targets meaningful commercial exploitation. Personal or localized use would remain untouched.
[1] Robert LeFevre, The Philosophy of Ownership 62 (2nd ed. 1971).
[2] Id.
[3] Aaron Perzanowski, Tattoos & IP Norms, 98 MINN. L. REV. 511, 536 (explaining that the tattoo industry is governed largely by industry norms, one of which is the recognition that artists do not claim control over a client’s use of the tattoo).
[4] Aaron Moss, Tattoo Artist's Trial Win is a Loss for Bodily Autonomy, Free Speech, Copyright Lately (Oct. 2, 2022), https://copyrightlately.com/tattoo-artist-trial-victory-copyright-lawsuit/.
[5] See e.g. Whitmill v. Warner Bros. Entm’t, Inc.; Reed v. Nike, Inc.; Solid Oak Sketches, Inc. v. 2K Games, Inc.
[6] 17 U.S.C. § 106A.
[7] See generally Thomas F. Cotter, Damages for Noneconomic Harm in Intellectual Property Law, 72 HASTINGS L.J. 1055 (2021) and Phillip Johnson, Copyright Infringement and Damages for Reputation, 42 E.I.P.R. 819 (2020).
[8] Peter K. Yu, Reconceptualizing Intellectual Property Interests in a Human Rights Framework, 40 U.C. Davis L. Rev. 1039, 1095–1105 (2007) (outlining an approach focused on just renumeration rather than exclusive control to protect artists without unduly burdening the clients’ freedoms).
[9] Associated Press, Artist Sues over Use of Tattoo, ESPN.COM (Feb. 16, 2005), http://sports.espn.go.com/espn/sportsbusiness/news/story?id=1992812.
[10] For information on the use of reward systems instead of traditional intellectual property rights to promote creativity, see Nancy Gallini & Suzanne Scotchmer, Intellectual Property: When Is It the Best Incentive System?, in Innovation Policy and the Economy 2 (Adam B. Jaffe et al. eds., 2002); Michael Abramowicz, Perfecting Patent Prizes, 56 Vand. L. Rev. 115 (2003); Steven Shavell & Tanguy van Ypersele, Rewards Versus Intellectual Property Rights, 44 J.L. & ECON. 525 (2001); Marlynn Wei, Should Prizes Replace Patents? A Critique of the Medical Innovation Prize Act of 2005, 13 B.U. J. Sci. & Tech. L. 25 (2007); Michael J. Burstein & Fiona E. Murray, Innovation Prizes in Practice and Theory, 29 Harv. J. L. & Tech. 401 (2015-2016); Michael Polanvyi, Patent Reform, 11 REV. ECON. STUD. 61 (1944).