Journal of Intellectual Property Law
Abstract
The growth of social media, AI-generated imagery, and name, image, and likeness (NIL) licensing has exponentially increased the reproduction of tattoos, yet their status under the Copyright Act remains unsettled. While tattoos arguably satisfy the threshold requirements of Title 17, their fixation on human skin challenges the definition of a "material object" and raises unique conflicts regarding bodily autonomy and publicity rights. Currently, courts address these disputes largely through equitable doctrines like implied license and fair use to avoid public policy failures, resulting in an unpredictable and incoherent legal framework.
This Note argues that judicial improvisation is insufficient to resolve the tension between an artist’s intellectual property and an individual’s right to control their body and likeness. Drawing on Congressional precedent, specifically the statutory interventions for architectural works, vessel hull designs, and semiconductor chip, this Note advocates for a statutory amendment explicitly excluding tattoos from copyright protection. Such a legislative carve-out is necessary to provide legal clarity, prevent the regulation of human bodies through copyright enforcement, and align the law with the realities of the modern NIL marketplace.
Recommended Citation
Emily Gamble,
Skin in the Game: The Case for Statutorily Excluding Tattoos from Copyright Protection,
33
J. Intell. Prop. L.
(2026).
Available at:
https://digitalcommons.law.uga.edu/jipl/vol33/iss2/6