Prof. Doug Lichtman, UCLA School of Law
June 15, 2011

For the past several weeks, an active debate in the copyright world has focused on the question of whether a tattoo drawn on a person’s face is properly considered eligible for copyright protection.  The issue came up in the context of Warner Brothers’ newly released movie, The Hangover Part II.  In the film, one of the actors sports a tattoo that was allegedly copied from a tattoo on Mike Tyson’s face.  The artist who created the original design sued; noted copyright scholar David Nimmer filed a declaration claiming that copyright does not even apply in this instance because the ink drawing on Tyson’s face is not sufficiently “fixed” in a tangible medium.

I find Nimmer’s declaration shockingly unconvincing.  Had Nimmer argued that Warner Brothers’ use of the tattoo is fair use, he might very well have had me on his side.  Had he argued that certain copyright remedies are off the table in instances when some otherwise-traditional remedy would (if applied here) constrain significant personal freedoms like the freedom to show one’s own face in public, fine.  But Nimmer argued that the tattoo is not eligible for protection because it is not “fixed in a tangible medium of expression” and thus fell short of a threshold requirement that is codified in Section 102(a) of the Copyright Act.  That makes no sense.

Under Section 102(a), federal copyright protection begins when original expression is captured in a physical form from which it can be “perceived, reproduced, or otherwise communicated.”  To take some simple examples, a playwright satisfies this requirement by preparing a typewritten manuscript or by filming a performance of his play on videotape; a composer satisfies the requirement by creating sheet music or recording an album.  Fixation is a broad concept.  The statute defines acceptable fixations to include “any tangible medium … now known or later developed, from which [expression] can be
perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”

The most striking aspect of the fixation requirement is that an acceptable tangible embodiment does not need to survive for any significant period of time.  Fixation is like a trigger.  Copyright protection commences the moment there exists a physical embodiment “sufficiently permanent or stable to permit [the associated expression] to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”  Thus, expression captured in a computer’s memory can be sufficiently fixed even though the expression would be immediately lost were the computer to lose power; and an author can intentionally destroy the fixation on which his copyright is based without in any way undermining his basic claim for copyright eligibility.  In short, fixation does not imply permanence.  Once a physical embodiment exists, copyright begins, and nothing more turns on the continued existence of that physical embodiment.

Fixation is easily accomplished for most works.  Books, paintings, and motion pictures are all natural ways for an author to communicate expression to others, and – even if quickly lost or destroyed – these embodiments all adequately fix expression for the purposes of federal copyright eligibility.  Sheet music and sound recordings are similarly natural ways to communicate musical compositions, and these, too, typically suffice.  The fixation requirement therefore turns out to be a significant hurdle only with respect to a narrow category of works, primarily those that are performed but not recorded.  Certain types of choreography might fall into this category as might impromptu performances like standup comedy and interactive theater.  Also excluded from copyright on these grounds are purely oral communications like folk tales and unrecorded radio broadcasts, and certain evanescent art forms such as sand castles, ice carvings, and, as Nimmer points out, “literary work [written] in the wet sand” or “pictorial work [created] in the frost of a windowpane.”

Against that backdrop, tattoos are an easy case.  Mike Tyson’s tattoo was first inked in 2003, and it remains intact even today.  This is not frost on a windowpane.  This is not some mark made in wet sand.  This is indelible ink applied below Mike Tyson’s skin, designed to last potentially for the rest of Tyson’s life.

Nimmer has no relevant, admissible argument that cuts the other way.  He argues that the policy of protecting tattoos is unattractive in his view.  Okay.  He argues that there are not many cases establishing that tattoos can be protected.  Fine.  But he says absolutely nothing about the conspicuously generous statutory requirements outlined here.  The Tyson tattoo clearly meets these standards.

Again, I might be with Nimmer had he argued that copyright law’s standard is too low and Congress should raise the bar.  I might be with him if he had argued that there are good policy reasons to tread carefully when it comes to enforcing copyright in this unusual fact pattern.  And I might be with him had he invoked copyright law doctrines (like the fair use doctrine) as the basis for various defenses and adjustments to the enforcement regime again given the facts in this case.

But the argument that there is no copyright simply because the expression was first fixed on Mike Tyson’s face?  Unlike Tyson, that argument has no teeth.