Internet Lawyer Blog
Following in the theme of “advances in copyright law,” there is an additional snag that seems to occur every now and then. Who owns a picture of you? Naturally, a person may say: “Well, that is a picture of me, and if someone is selling it, or making money from it, then I own it and should be profiting as well.” We can extend this abstraction even further. A tattoo artist creates a design for a famous person, and with that person’s appearance on a film, or a video game, the tattoo artist demands payment. The famous person may say: “But it was a tattoo on my body. Why should I be forced to pay?” Ultimately, it comes to a two-fold situation: First, who is the author? Second, was there a license granted to make it acceptable?
What is authorship?
The first item to determine is authorship. In copyright, one does not necessarily have to be the one who “creates” the work to own the copyright. There are contracts known as “works-for-hire” agreements that can infuse ownership and authorship towards a legal entity. This would mean the legal entity (e.g., corporation, LLC) would be the author and able to file suit under the Copyright Act.
To be an author, one only needs to fix the original work in a tangible medium. Data, paper, and plaster are acceptable tangible mediums. As long as it is fixed in some way, it qualifies. Also, for work-for-hire agreements, the same rules apply. Although, it is the hired party who does the “fixing” at the behest or direction of the assigned author as an employee or as part of a specially-commissioned work under one of the limited categories.
That said, the “subject” of a photograph, or a recipient of a tattoo (absent a work-for-hire agreement) would probably not be the copyright owner. However, this is not to say that there would not be other ways for the subject to seek legal remedies.
Implied licenses
So, in lieu of a copyright, how might someone use a picture of him/herself that he/she did not take? Or stranger yet, what may occur if the tattoo is “unauthorized” for a television appearance or a photograph of their own? This is the domain of an “implied license.” Licenses are effectively “permissible uses” of copyrighted material and allow an individual to skirt around some of the copyright law prohibitions. Formally, these may be outlined in a contract, explicitly giving provisions on what is and is not an acceptable use of the copyrighted material. Less formally, it may be oral understanding between the parties. For example, a subject might wish to tweet a photo of him/herself, which another person took with the subject’s consent. It may be implied that the subject, in consideration for being a subject, wanted to retain the ability to distribute and copy the photograph.
Regarding tattoos, the situation has been more complex and subject to litigation, notably in the NBA 2K series of video games and The Hangover II movie. Now, both have expressed that the recreation of the tattoos have been violations of copyright laws. Although, at this time, both cases are unresolved, leaving the question of whether there was an implied license by the tattooed person to display the tattoo or recreate it as part of his/her personal business activities.
At our law firm, we assist clients with legal issues related to business, intellectual property, and e-commerce transactions. Please contact us to set up an initial consultation.