Can you copyright a tattoo?

A federal judge will soon be asked to decide whether a tattoo that adorns Mike Tyson holds a valid copyright under US law.

Victor Whitmill, the artist who created and applied Tyson’s now distinctive face tattoo, filed suit against Warner Bros. this past April for copyright infringement after he saw ads for “The Hangover Part 2″ containing a copy of the tattoo.

Whitmill claims that when the tattoo was applied, Tyson acknowledged in writing that the tattoo belonged to the tattoo studio.

Accordingly, when a copy of that tattoo was used in the Hangover Part 2 without Whitmill’s permission, Whitmill’s copyright was infringed.

Does Whitmill have a case?

Copyright law protects “original works of authorship.” 17 U.S.C. § 102(a).

Let’s break this down into two segments:  “originality” and “works of authorship.”

Originality requires “independent creation by the author and just a scintilla of creativity.” Luck’s Music Library, Inc. v. Ashcroft, 321 F. Supp. 2d 107, 118 (D.D.C. 2004).

However, functional expressions cannot be copyrighted. Words and short phrases such as names, titles, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering or coloring, or mere listings of ingredients or contents are not eligible for copyright protection.  37 C.F.R § 202.1(a).

The tattoo that adorns Mike Tyson’s face is certainly distinctive, but is it original for purposes of copyright law?   The answer could be yes.  In Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 346 (1991), the Supreme Court wrote that “the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, no matter how crude, humble or obvious it might be.”

Under this standard, the Whitmill’s drawing, so long as he independently created it (and did not himself copy it from another source), would likely be “original” for purposes of copyright law.

Let’s turn to the second piece of the puzzle — works of authorship. Does the tattoo count as a work of authorship?

While the Copyright Act delineates eight specific categories of “writings” that are protected by copyright law (tattoo not being one of them), Congress expressly intended that these categories serve as “illustrative and not limitative” categories. H.R. Rep. No. 94-1476, at 53, 94th Cong., 2d Sess. (1976). So a tattoo may, in fact, count as a work of authorship.

A work of authorship must be “fixed in any tangible medium of expression.” 17 U.S.C. § 102(a).  This is looking like the key issue in this case:  whether Mike Tyson’s skin is a “medium of expression” in which something can be “fixed.”

(Incidentally, David Nimmer, one of America’s top cited copyright scholars and an expert witness for Warner Bros., has flipped-flopped on whether skin can be a medium of expression.)

If the court decides that skin is a tangible medium of expression, Whitmill’s case starts to look pretty good.