Outside Publication

Implied In Ink?: How Tattoo Artists Can Claim And Protect Their Copyrights Against An Implied License Defense

Boston Patent Law Association Newsletter, Vol. 48, Issue 1

Winter 2016

Tattoos have become an increasingly popular form of art and expression and are now commonly sported by celebrities and professional athletes. As such, the right to copyright a tattoo, an issue that has been identified but never resolved, is ripe for judicial decision.

No court has rendered a decision on the merits that expressly states the bounds of copyright enforcement for tattoo art, but, that could change depending on the outcome of the pending case Solid Oak Sketches, LLC v. 2K Games, Inc., a case focused on the impermissible reproduction of tattoos in a video game. It is likely, this article argues, that a court will soon grant tattoo artists substantive copyright protections in their original art. It is also likely the court will utilize an implied license defense to balance the rights of the tattoo artist with the rights of the tattoo recipient.

Thus, this article explains how tattoo artists should begin to implement daily practices that put themselves in the best position to claim their copyrights, why they should prepare for an implied license defense, and how they can limit the license to non-commercial ventures to maximize their protection and profit.

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