Legal Question in Intellectual Property in New York

Re: Selling Temporary Tattoos Based on those of a Famous Rapper - Legal to Use T

Tattoos may be protected by copyright. They would be considered �original works of art.� (In

my examples below, I am making the assumption that the artist is the copyright holder and that

the copyright to the tatoos has not been assigned to a third party.)

An original work is considered to have copyright protection once it is set in tangible form.

However, to acquire greater protection, the artist will apply for a copyright registration with the U.S. Copyright Office. Therefore, whether registered or not, you cannot use the tatoos that are original designs of another party.

An artwork that is �inspired� by another may be considered a �derivative� work. The right to

make a derivative work belongs exclusively to the original artist. Consequently if you want to use

tatoos �inspired� by another design, you will still need the artist�s permission.

Finally, there is no �international copyright.� Copyright registrations are jurisdictional. However (and it�s a BIG �however�), there are several international treaties and conventions, not to mention the national laws of foreign countries that may protect unauthorized use of a U.S. copyright in a foreign country. (Japan is a party to the Berne Convention as well as many others, including WTO.)

Sarah Klug

Law Office of Sarah Scova Klug PLLC/

845-471-8106/

[email protected]/

Re: Selling Temporary Tattoos Based on those of a Famous Rapper - Legal to Use T

If the rap star died domiciled in New York, you could make an argument that since NY does not recognize a post mortem right of publicity, unlike many other states, that his heirs would not have a cause of action against you withreagrd to his image. However, there might be problems with his record company & management company. There may be a copyright infringement with regard to the photographs. There might be a licensing agreement in a state that does recognize post mortem rights of publicity. There might be trademark issues. Certainly it could be argued that tatoos are a a work of art and copyrightable. It could be argued that this is indeed a derivative work. This is a complicated fact pattern with a great deal of potential problems with regard to IP rights.