Are Tattoos Copyrightable and if so, who owns the IP?

In the world of tattoo artistry, copyright ownership typically resides with the artist that creates the original design. This means the artist holds the exclusive rights to reproduce, distribute, and display the artwork. But who is the artist if a client comes in with their own design? And is human skin a "tangible medium of expression" for the purposes of copyright protection?

Some legal scholars argue that the regenerative nature of human skin challenges its qualification as a fixed medium while others contend that the relative permanence of tattoos is sufficient to satisfy the fixation requirement. The Second Circuit Court has declined to definitively rule on this matter, leaving the issue unresolved.

If you are seeking a tattoo and create your own original design, consider having the tattoo artist sign a release or work for hire agreement granting all rights in the design to you. If you are a tattoo artist creating your own original artwork make it clear to your clients as to what they can and cannot do with your designs.

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USPTO Issues One Millionth Design Patent

Design patent D1,000,0oo issued on September 26th. Having had two design patents issue on September 19th, I have to admit that I am slightly disappointed to have missed it by a week!

Diminishing Success Rate in Successive Office Action Responses

Before engaging with a client in a new patent application I make a point of reviewing the overall grant rate statistics. Typically, the acceptance rate for patent applications in the United States hovers right around 50%. In 2020, the grant rate was 53% meaning that nearly half of the patent applications submitted never resulted in a patent.

While the odds may be slightly in an applicant’s favor, it is important to understand that the battle for a patent is an uphill one from the start. During prosecution, an applicant may receive a number of rejections. In my experience, most examiners are not willing to grant a patent after a response to a second office action. This article and graphic seem to arrive at the same conclusion.

Click here for article and graph outlining the success rate of successive responses to rejections by the USPTO.