Can I leave my tattoo in my will?

Around 2011, tattoo artist Victor Whitmill sued Warner Brothers for its use of the Mike Tyson facial tattoo in its promotion of the film The Hangover Part II, which is one of the highest grossing R-rated comedies ever. He was able to prove that Mike Tyson had signed an agreement confirming that he, Victor, owned the copyright of the tattoo, and was able to obtain a settlement from Warner Brothers. So the tattoo artist can have copyright of their art, but is the tattoo itself ‘property’? Who owns it and can you leave it to your loved ones in your will?

A few years ago, an American family funeral director and embalmer developed a technique to preserve and frame surgically removed skin and the tattoos on it. In 2018 the National Association for the Preservation of Skin Art, an association of tattoo artists and enthusiasts, began advertising its tattoo preservation services in England. This gives people the opportunity to have their tattoos preserved as artwork for family members after they die, but can someone own part of a body and is a gift of a tattoo through a will valid?

A human body cannot be owned. So a person cannot dispose of their body, or body parts, through their will. The executors of a will normally have the right to possession of the body, but only in order to dispose of it lawfully, ie to decide on matters such as cremation or burial and where the funeral is to take place. So it is uncertain whether the executors can order the removal and preservation of the tattoo.

And if the tattoo is removed and preserved, but no-one can own it, what if there is a dispute over the will generally or over the gift of the tattoo? What if it were sold as a work of art? Would the purchaser obtain any valid rights? There are many other unanswered questions.

Anyone considering leaving a tattoo in their will should understand that this is a new and untested area of law, so their wishes may not be carried out. The only certainty is that they should take advice from a solicitor.

This article was featured in the December 2021 edition of our Primed newsletter. Subscribe here.