Abstract -

This Note argues that, although “flash art” and other drawings upon which a tattoo may be based are likely copyrightable subject matter under the Copyright Act of 1976 (Copyright Act), the policy implications of granting copyright protection to tattoos militate against extending such protection. To avoid these consequences, the copyright statute should be interpreted as failing to include the human body as a “copy” within the scope of the Copyright Act and, therefore, tattoos would not be subject to the protection of the Act. Part I provides a background on the statutory framework of the Copyright Act, including the requirements for copyrightable subject matter, copyright ownership, and the exclusive rights granted by the Copyright Act to the copyright owner. Part II provides an overview of three cases in which tattoo artists have alleged that their tattoos, or their drawings upon which a subsequent tattoo are based, are copyrightable subject matter. These tattoo artists have alleged infringement of their works based upon a subsequent reproduction or display of their tattooed work. Part III begins by addressing whether, as a preliminary matter, a tattoo would generally meet the Copyright Act’s copyrightability requirements. Part III then presents several negative policy issues that would likely arise should copyright protection be extended to tattoos. It concludes by arguing that tattoos are not “copies” as defined under the Copyright Act and therefore, they are not subject to copyright protection.

Originally published in Notre Dame Law Review, 90 Notre Dame L. Rev. 1713 - 2015