Trademarks and Tattoos

With 20% of Americans having tattoos you would think the issues of trademarks and tattoos would have been settled a long time ago. However there have been several recent high profile case involving tattoos, trademarks and copyright. One of the more notable was LeBron James’s tattoo artist suing the video game NBA 2K16 for copyright infringement. The artist was suing on the grounds that the game recreated his tattoos without permission. The case is still pending.

Can You Sue for Tattoo Copyright Infringement?

Technically speaking under the current laws tattoos would most likely be considered copyrightable and therefore can be protected. There are three things required in order to get copyright protection.

  • Authorship
  • Original
  • Fixed

Pretty much any kind of art is considered a work of authorship. Since tattoos easily fall under the umbrella of art, they get the first checkmark. The standard for originality is historically fairly low for copyright, so as long as the tattoo isn’t a clear copy say hello to checkmark number two. Finally, tattoos are certainly fixed so that rounds out the third requirement.

As you can see, under the very general requirements, tattoos can be protected under copyright law. So tattoo artists might a have a legal leg to stand on if they want to sue a video game, but what about brands suing everyday people?

Can A Company Sue a Tattooed Person for Trademark Infringement?

Brand fanatics getting inked up with their beloved logos isn’t unheard of, but these fanatics might be putting themselves in hot water. Since nearly anything can be trademarked, tattoos are definitely fair game.

If a company saw you walking down the street with their logo inked on your arm they could claim three things.

  • You reproduced the trademark
  • Your use of the mark is causing confusion
  • You are in commerce without consent

It’s highly unlikely a big brand would bother picking a legal fight with an average Joe who is clearly a fan of theirs, but the language of the law certainly allows them the opportunity to do so.

If you need help with any kind of help with trademarks call the Scottsdale trademark attorneys at Parsons & Goltry.

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