3 ms·

But shouldn't a tattoo be considered a "work for hire", with Tyson owning the copyright on his own tattoo?

joshu 15y ago
That wa my assumption.
sunchild 15y ago
Tyson definitely owns an instance of the tattoo. He doesn't own the design, unless the artist signed a contract transferring ownership of the design to Tyson.
- Devilboy 15y ago
  That's not what the law says. If Tyson paid the artist to design him a tattoo then it belongs to Tyson.
  - chopsueyar 15y ago
    "work for hire" would mean the tattoo artist is an employee of Tyson. I do not believe Tyson paid the artist as a W-2 wage employee. If anything, he (the artist) would be acting as a contractor (1099), performing an agreed upon service to Mr. Tyson. http://en.wikipedia.org/wiki/Work_for_hire#Law_of_the_United_States http://en.wikipedia.org/wiki/Work_for_hire#Law_of_the_United...
  - sunchild 15y ago
    You're confused about what the "work" is here. Tyson paid to have a tattoo put onto his face. He owns that tattoo (i.e., the ink and, of course, the skin). Paying to have that tattoo placed on him does not mean he owns the design. You might be able to dig up some evidence that Tyson paid to have the tattoo specially designed for him, in which case, it would need to meet the following test: A "work made for hire" is— (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. (17 U.S.C. § 101) That last part about an express agreement pretty much sinks the possibility that it's a work for hire, unless you know of such an agreement in this case. NOTE: IAAL, but not your lawyer, and this is not legal advice.
biot 15y ago
From the article: "The complaint includes a photograph of the tattoo being inked and a statement from Mr. Tyson agreeing that “all artwork, sketches and drawings related to my tattoo and any photographs of my tattoo are property” of Mr. Whitmill’s business." Agreements aside, this is also an issue that comes up when hiring a programmer. If you pay someone to write code, don't you own the copyright on the code? Similarly, if you pay someone to photograph your wedding, don't you own the copyright on those photographs? In general, have a solid written contract clearly spelling out ownership issues and have it reviewed by a lawyer familiar with copyright issues before you engage someone in creative work.
- sk5t 15y ago
  FWIW, you ordinarily would not own copyright to photos a professional takes of your wedding, and most professionals would apply a large fee otherwise.
  - chopsueyar 15y ago
    This is correct. My family has several generations of professional event/wedding photographers. The money was made in the ordering of specific photograph prints from the photography company, things like albums and wallet prints. However, that business model is all but destroyed. It is much simpler and more profitable to give the reproduction rights to the client and burn everything to a couple of DVDs or copy to a USB stick.
tzs 15y ago
No. In the US to be a work for hire it must fall into one of two cases. 1. a work prepared by an employee within the scope of his employment. The tattoo artist would not be an employee[1] of Tyson, so this case does not apply. 2. A work specially ordered or commissioned (check!) for us as a contribution to a collective work (nope!), as a part of a motion picture (nope!) or other audiovisual work (nope!)[2], as a supplementary work (nope!)[3], as a compilation (nope!), as an instructional text (nope!), as a test (nope!), or as an atlas (nope!), if the parties expressly agree in a written instrument signed them that the work shall be considered a work made for hire. Case 2 does not apply because first a tattoo doesn't seem to fall into any of the categories that can be a work for hire. Even if it did, there would have to be an EXPRESS agreement that it is a work for hire, and that has to be executed as a SIGNED and WRITTEN instrument. [1] The determination of whether the hired party is an employee is determined by the common law of agency. Factors involved in this are who controls the manner and means by which the work is accomplished, who supplies equipment and tools, where the work is done, the duration of the relationship, whether the hiring party can assign addition work to the hired party, who hires assistants for the hired party, and things like that. Unless the relation between Tyson on the artist was very atypical of the relationship between tattoo artist and customer, the artist was not an employee according to the common law of agency. [2] An "audiovisual work" is a work that consists of a series of related images which are intended to be shown by the use of machines or devices, such as projectors, viewers, or electronic equipment, together with accompanying sounds (if any). Since a tattoo is a single image, not a series of related images, it is not an audiovisual work. [3] A supplementary work is a work that is created and relates to an existing work. Examples would be forwards to books, illustrations for a book, and the like.
- chopsueyar 15y ago
  Also from the wikipedia article (http://en.wikipedia.org/wiki/Work_for_hire#Law_of_the_United_States http://en.wikipedia.org/wiki/Work_for_hire#Law_of_the_United...)... Where start-up technology companies are concerned, some courts have considered that the traditional factors for finding that an author is an "employee" can be less important than in more-established companies, for example if the employee works remotely and is not directly supervised, or if the employee is paid entirely in equity without benefits or tax withholding Your #[3] could be argued that as a celebrity persona, the public image of "Mike Tyson" is a created work, and the addition of the tattoo is supplementary to his creative work - his celebrity persona. But, as you stated, it would still require a signed work for hire document.

joshu 15y ago

That wa my assumption.

Tyson definitely owns an instance of the tattoo. He doesn't own the design, unless the artist signed a contract transferring ownership of the design to Tyson.

Devilboy 15y ago
That's not what the law says. If Tyson paid the artist to design him a tattoo then it belongs to Tyson.
- chopsueyar 15y ago
  "work for hire" would mean the tattoo artist is an employee of Tyson. I do not believe Tyson paid the artist as a W-2 wage employee. If anything, he (the artist) would be acting as a contractor (1099), performing an agreed upon service to Mr. Tyson. http://en.wikipedia.org/wiki/Work_for_hire#Law_of_the_United_States http://en.wikipedia.org/wiki/Work_for_hire#Law_of_the_United...
- sunchild 15y ago
  You're confused about what the "work" is here. Tyson paid to have a tattoo put onto his face. He owns that tattoo (i.e., the ink and, of course, the skin). Paying to have that tattoo placed on him does not mean he owns the design. You might be able to dig up some evidence that Tyson paid to have the tattoo specially designed for him, in which case, it would need to meet the following test: A "work made for hire" is— (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. (17 U.S.C. § 101) That last part about an express agreement pretty much sinks the possibility that it's a work for hire, unless you know of such an agreement in this case. NOTE: IAAL, but not your lawyer, and this is not legal advice.

biot 15y ago

From the article: "The complaint includes a photograph of the tattoo being inked and a statement from Mr. Tyson agreeing that “all artwork, sketches and drawings related to my tattoo and any photographs of my tattoo are property” of Mr. Whitmill’s business." Agreements aside, this is also an issue that comes up when hiring a programmer. If you pay someone to write code, don't you own the copyright on the code? Similarly, if you pay someone to photograph your wedding, don't you own the copyright on those photographs? In general, have a solid written contract clearly spelling out ownership issues and have it reviewed by a lawyer familiar with copyright issues before you engage someone in creative work.

sk5t 15y ago
FWIW, you ordinarily would not own copyright to photos a professional takes of your wedding, and most professionals would apply a large fee otherwise.
- chopsueyar 15y ago
  This is correct. My family has several generations of professional event/wedding photographers. The money was made in the ordering of specific photograph prints from the photography company, things like albums and wallet prints. However, that business model is all but destroyed. It is much simpler and more profitable to give the reproduction rights to the client and burn everything to a couple of DVDs or copy to a USB stick.

tzs 15y ago

No. In the US to be a work for hire it must fall into one of two cases. 1. a work prepared by an employee within the scope of his employment. The tattoo artist would not be an employee[1] of Tyson, so this case does not apply. 2. A work specially ordered or commissioned (check!) for us as a contribution to a collective work (nope!), as a part of a motion picture (nope!) or other audiovisual work (nope!)[2], as a supplementary work (nope!)[3], as a compilation (nope!), as an instructional text (nope!), as a test (nope!), or as an atlas (nope!), if the parties expressly agree in a written instrument signed them that the work shall be considered a work made for hire. Case 2 does not apply because first a tattoo doesn't seem to fall into any of the categories that can be a work for hire. Even if it did, there would have to be an EXPRESS agreement that it is a work for hire, and that has to be executed as a SIGNED and WRITTEN instrument. [1] The determination of whether the hired party is an employee is determined by the common law of agency. Factors involved in this are who controls the manner and means by which the work is accomplished, who supplies equipment and tools, where the work is done, the duration of the relationship, whether the hiring party can assign addition work to the hired party, who hires assistants for the hired party, and things like that. Unless the relation between Tyson on the artist was very atypical of the relationship between tattoo artist and customer, the artist was not an employee according to the common law of agency. [2] An "audiovisual work" is a work that consists of a series of related images which are intended to be shown by the use of machines or devices, such as projectors, viewers, or electronic equipment, together with accompanying sounds (if any). Since a tattoo is a single image, not a series of related images, it is not an audiovisual work. [3] A supplementary work is a work that is created and relates to an existing work. Examples would be forwards to books, illustrations for a book, and the like.

chopsueyar 15y ago
Also from the wikipedia article (http://en.wikipedia.org/wiki/Work_for_hire#Law_of_the_United_States http://en.wikipedia.org/wiki/Work_for_hire#Law_of_the_United...)... Where start-up technology companies are concerned, some courts have considered that the traditional factors for finding that an author is an "employee" can be less important than in more-established companies, for example if the employee works remotely and is not directly supervised, or if the employee is paid entirely in equity without benefits or tax withholding Your #[3] could be argued that as a celebrity persona, the public image of "Mike Tyson" is a created work, and the addition of the tattoo is supplementary to his creative work - his celebrity persona. But, as you stated, it would still require a signed work for hire document.