The Right-of-Publicity Challenges for Tattoo Copyrights
King, Yolanda M.
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This Article is the third and final piece of a series of articles that examine the applicability of intellectual property law to tattoos. The second article in the series, The Enforcement Challenges for Tattoo Copyrights, concluded that copyright owners can and should enforce their rights against users outside of the tattoo artist-customer relationship. This Article explores a different source of intellectual property protection for tattoos: the right of publicity. As tattooing has become increasingly prevalent among celebrities, tattoos have become “one” with the persona of the tattoo bearer. A tattoo that carries the meaning of a celebrity tattoo bearer serves as indicia of that celebrity’s identity. The Article proposes that when a tattoo becomes associated with the meaning of a celebrity’s identity, rather than solely retaining the message of the tattoo itself, the tattoo moves beyond mere protection under copyright law and acquires additional protections under the right-of-publicity laws. This transformation of intellectual property rights is the subject of the Article. Right-of-publicity laws exist in more than thirty of the states in the United States, in common law, by statute, or both. 1 Therefore, assuming a state recognizes the right of publicity, and even if a celebrity (1) owns the identity at issue (validity) and (2) shows unauthorized third-party use of the identity in a way that is harmful to the commercial value of the identity (infringement), the claim may conflict with First Amendment interests. This Article also considers the various tests employed by courts to accommodate the conflicting interests of the First Amendment and the right of publicity. The Article endorses the Predominant Use test, which properly recognizes the prevalence of mixed commercial and expressive uses for tattoos.