Today's earworm is not a song about Tattoos, but the lyrics include "I'm in tatters".
Since the Supreme Court of the United States (SCOTUS) decided that Andy Warhol's use of the Goldsmith photo portrait of the artist sometimes known as Prince was not transformative, and was therefore not "Fair Use" of the photographer's work, some suppositions about tatooing someone else's photograph onto a body is in tatters.
There are a lot of romance novels about tattooed protagonists. Here is one blogger's list: https://joreadsromance.co.uk/national-tattoo-day-romance-novels/
None of the cover art that I saw when scrolling through these three sites had a celebrity's face tattooed on a model, but any author considering cover art should be aware of the evolution in the law.
Faces are not the only potential problem. There are some designs that look like copyrighted or trademarked works. I assume that, if hiring a tattooed cover model, it would be prudent to check that he (or she) has all the necessary rights from the tattoo artist to display the tattoo for commercial gain. Moreover, if the cover art of the tattoo is going to be used for advertising purposes and posted widely on social media, there may be other licenses and publicity rights that have to be covered.
Oh what a tangled web! (Sir Walter Scott, Marmion).
In "Think About The Ink", Bess Morgan, a legal blogger for the law firm Loeb & Loeb LLC, writes about the changing legal status of tattoos since the US Supreme Court decision in the Prince photo case. One Court has had to revise its analysis in the case Sedlik v Von Drachenberg et al. which was about a tattoo that was inspired by a photograph of the musician Miles Davis.
The law firm Loeb & Loeb often deals with tattoo-art-related issues in the context of fashion, licensing, collaborations and body art in general.
To be "transformative" (and therefore a fair use) a copy of a copyrighted work must have a “further purpose or different character” vs. the meaning or aesthetic of the defendant’s work. It is not enough for the photograph or design to merely be a different color, or displayed on a different surface.
The Loeb & Loeb very valuable and comprehensive advice for cover artists and cover models (ie "Talent") is:
"Talent should procure a written consent and release from the tattoo artist that, among other terms, allows the talent to freely display and exploit the tattoo in any manner without further obligation, and secures representations surrounding the design."
For authors and publishers (or "Brands"):
"Brands engaging inked talent should specifically receive a grant of rights to use talent’s tattoos and body art as an element of the persona license and seek indemnification from an IP and publicity rights perspective."Bess Morgan also offers very wise and practical advice for Brands who hire a tattooed model for his or her physical charms, but the ink is not an essential element of the Look.
All the best,
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