March 12, 2021

In this article, Jenner & Block Special Counsel David W. Sussman and Associate Kara V. Brandeisky examine the legal tension between the tattoo artist's rights as copyright owner and the tattoo bearer's rights to freedom of expression, which includes licensing the image for commercial uses. Courts have taken divergent approaches to solve this tension; the authors suggest that one way courts could reconcile the competing rights is by finding an implied license. They then discuss two aspects of the implied license doctrine that require further clarity in the context of tattoo litigation.