Artist Sues Restaurant for Ripping Off His Tattoo (Ouch!)
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UPDATED: Jul 16, 2021
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A Virginia tattoo artist has sued a local restaurant chain, claiming that it’s infringing his copyright for a design he created for a customer.
According to the complaint filed by Roger Ladouceur, the tattoo (on the hairy leg below)
was originally created for a client on whose leg Plaintiff placed the Tattoo in October 2013, and since then, Plaintiff has utilized the Tattoo as a marketing device … to advertise his tattoo business…
Ladouceur said that the restaurant chain, Macado’s, had used his design, without his authorization, starting in 2014.
One of the restaurant’s glasses is shown on the right.
Ladouceur said that he complained to the restaurant about its use of his design in 2014, but that the restaurant went ahead and used it again in its marketing and promotional materials around Halloween of 2015.
The artist is seeking damages to include all profits that the restaurant earned related to food and drink sales while it was using his design.
Are Tattoos Copyrightable?
A number of courts have ruled that tattoos are protected by copyright law – just as other forms of art and design are.
Copyright law protects “original works of authorship fixed in any tangible medium of expression.” A “tangible medium” includes ink on (or in) human skin.
In a 2011 federal court case involving the famous tattoo on Mike Tyson’s face, the judge made note that “Of course tattoos can be copyrighted.”
In the Tyson case, the artist who created the former fighter’s tattoo was suing the Warner Bros. movie studio for depicting the same design on the face of a character in The Hangover: Part II.
Although Warner argued that this was a parody and thus “fair use” under copyright law, the judge didn’t agree, writing
This use of the tattoo did not comment on the artist’s work or have any critical bearing on the original composition. There was no change to this tattoo or any parody of the tattoo itself.
Who Owns a Tattoo?
The rights to a tattoo design have often been held to belong to the artist who created it rather than the person whose skin it decorates.
In the Tyson case, the artist said that the fighter signed a release giving him ownership of the design, for which he then registered the copyright.
One entertainment lawyer suggested that such waivers may become standard in tattoo parlors, to prevent any later disputes.
The ABA Journal reported on several lawsuits based on the “unauthorized display” of tattoos, including this one:
In 2012, a tattoo artist who inked mixed-martial-arts fighter Carlos Condit sued video game maker THQ Inc. for depicting Condit’s lion tattoo on a game character resembling the fighter.
To avoid such claims, the NFL has warned football players to obtain waivers from their tattoo artists to guard against claims when the tattoos are visible when players appear in videogames, ads, and other media.
Do I need to hide my tattoos for fear of getting sued?
According to Professor Yvette Joy Liebesman of Saint Louis University School of Law, “When you tattoo somebody, what you are giving them is an implied license to live their life.”
She said that people don’t need to worry about displaying their own tattoos but about copying a tattoo onto someone else.