Tattoo and its influence in today’s art industry is evidently seen more than ever. Its impact to society is greatly mainstreamed anywhere and is now becoming a growing economy rather than just a piece of ink on your skin. The bandwagon of its spontaneity is something that people and artists alike enjoy tremendously. However, certain individuals question its legal aspects in terms of copyright issues of their work including some ethical concerns.
Copyright or Copywrong?
With the business of tattooing booming, so does the demand for its quality work.
As of 2012, one in five adults in the United States have at least one tattoo. While some designs are simple, many are incredibly complex, original works of art. However, since tattoos are designed to be permanent, and often placed to be seen, the question is now set – should the tattoo recipient be held responsible for copyright issues by the artist or not?
Another question that arises in this context is whether a tattooed person owns the copyright in their tattoo. Unless the copyright in the tattoo was assigned in writing, the answer is no.
On April 19, 2011, the tattoo artist who made Mike Tyson’s tattoo received a registration for it as artwork on a 3D object. It is notable, however, that Tyson signed a release stating that “all artwork, sketches and drawings related to [his] tattoo and any photographs of [his] tattoo are property of Paradox-Studio of Dermagraphics” (the business name under which the tattoo artist worked)
The opinion of the Copyright Office seems to be that tattoos are indeed worthy of copyright protection. During the time when the movie, “The Hangover II” was being promoted, Warner Bros. was sued for having a replica of Mike Tyson’s iconic facial tattoo used on an actor’s face. Tyson’s tattoo artist had registered the design with the United States Copyright Office and sued for copyright infringement. While the judge, in a hearing, seemed to clearly believe that tattoos could be copyrighted, the case settled out of court without a definitive judgment. Unfortunately, there are no cases to date that definitively answer the questions around copyright infringement and tattoos.
In Australia, an artist’s work is protected by copyright without requiring the artist to formally register their work. However, certain criteria must be met, namely:
1. the artist must be an Australian citizen or resident; and
2. the work must be an original artistic work demonstrating intellectual effort (ie. it is an original painting, sculpture, drawing, engraving or photograph, whether the work is of artistic quality or not); or
3. the work must be an original work of artistic craftsmanship.
Copyright may also subsist on original compilation of works including an analysis of whether copyrights exist is a question of fact and degree. Provided the copyright criteria is met, any artist – professional or not, can enforce copyright standards in their work.
Legal cases and concerns
Realistically, legal arguments from artist to customer extends. There are a few cases that have arisen in recent years that may shed some light on the rights of the tattoo artist and the right of the human owner of the tattoo.
In the United States of America (the USA) there have been cases where tattoo artists have brought claims for copyright infringement. For example, Nike was sued when it used NBA player Rasheed Wallace’s tattoo in advertising material. In addition, "Take-Two", makers of the video game NBA 2K, is being sued for the use of various NBA players’ tattoos within the game.
In April 2018, an artist filed a case concerning WWE wrestler Randy Orton’s tattoo, which appeared in the WWE 2K16, 2K17 and 2K18 video games.
It generally involves companies who have used the tattoos of celebrities for commercial purposes and each involves the artist or copyright owner suing for breach of copyright. The tattoo depiction is now being a focus for marketing strategy and involves it being capitalized for commercial gain where money is involved.
Social media will influence the issue of tattoo copyright in three ways:
First, by giving tattoo artists a platform to advertise their work beyond the human canvasses they paint their art on. Social media enables the artist to widely display their unique style.
Second, the rise of social media influencers (who may not be a celebrity in the traditional sense, but who have a wide following and profit off their personal brand, some quite lucratively) will show off their tattoos and may even use their tattoos as part of a wider commercial image.
Third, an artist (not necessarily a tattoo artist) whose work is tattooed on a person by a tattoo artist without authorization or license may more easily track the tattoo artist on social media to seek remedies for copyright infringement.
This comes with the nature of humans being able to want to obtain tattoos on their body. Therefore, an existing agreement or contract is necessary before getting inked. Here is why:
First, the client generally dictates what they want the tattooist to put on their body, which may be a trending concept or something that the client has seen on another person. Ultimately, the client gets the last say as to what they want permanently etched in their skin, rather than the tattoo artist.
Second, unlike other artistic works, tattoos are arguably sold with an implied license for the customer to display the tattoo in public and allow photographs of it. But, again, every case falls on its facts and there will be scenarios where a tattoo artist sells their work to client has to rely on the basis that it is not reproduced, copied, distributed or licensed, whether for commercial gain or otherwise.
Here are some strategies how you can protect yourself from such cases:
For the tattoo artist
If your reputation is growing, and/or beginning to get some high-profile clients then you should sure have your copyright to your work. The clearest strategy to achieve this is by drafting an agreement for your client to sign prior to you inking them. You may be able to work some clauses into your existing contract. It is also important to keep a record of your original works, whether they are preliminary sketches or completed pieces. You can do this by dating, filing and storing your work.
You should also be vigilant when a client wants a tattoo of an existing piece of art. Where possible, contact the original artist and request their permission to tattoo their work.
For the tattoo wearer
If you are considering a tattoo piece by a prominent tattoo artist, be aware if copyright is embedded in those tattoos, and it will be particularly relevant if your career is in the public eye.
A tattoo is classified as an artistic work under the Copyright Act and therefore only the owner of the work may reproduce or adapt it. As such, every time a person takes a picture of their tattoo and posts it on social media, they are infringing the copyright of the work's owner, as this constitutes a reproduction of said work.
The same principles apply when requesting a custom design based on an image on the Internet – for example, the Rolling Stones logo. Although it may be adapted and thus considered a new work, it can still be infringing the copyright of the original work's owner. When in doubt, an original work should be created without reference to any other works. Although copyright law may not be the first thing on someone's mind when visiting a tattoo parlor, it is something to consider.
Rights of the Artist
According to U.S. Constitution, copyright protection exists “in original works of authorship fixed in any tangible medium of expression… from which they can be perceived, reproduced, or otherwise communicated.” Tattoos do seem to meet the perception and reproduction standard, as they can be seen on exposed skin and reproduced in photographs (and as digital representations in video games). The question seems to be, for each particular tattoo, as to whether it is an “original work of authorship.”
Usually, there is an understanding between clients and artists that the tattoo recipient has the right to live their life without having a concern about the tattoo being seen or used in other terms. However, case law suggests that a line is crossed when a design is misappropriated.
Rights of the Subject
The question of copyright ownership over their tattoo is likely a low priority. Whether getting a Mickey Mouse tattoo on your ankle infringes Disney® copyrights may be exciting dinner conversation, it probably will not end in a lawsuit. Additionally, it’s generally understood that those getting tattoos will be displaying them – on their person, in pictures, and on social media. Further, since such use is likely non-commercial, and it probably is used fairly then most likely, it is protected.
However, for celebrities, it should be part of the pre-application discussion. Commercial use involving a tattoo display regarding a celebrity may run afoul of the artist’s copyright. It is still an unsettled question whether there is an implied right of reproduction that would allow for images to be taken of a celebrity that show the tattoo without consulting the tattoo artist for permission.
What to do about that Tattoo
Most of the tattoo cases to date share an important feature – the tattoo was used in a commercial work and was not displayed in its original state – e.g. it was not on the body of the celebrity who initially received it.
Without a legal decision as a guide, it is not clear exactly where copyright protection may extend. However, there may be some steps that can be followed in order to avoid a costly judgment or settlement. First, the tattoo must be copyrightable subject matter. For example, a tattoo must be both original, and the tattoo artist must be the author. Second, the tattoo recipient can negotiate terms regarding who owns rights on the tattoo. Additionally, the tattoo artist may agree to license the tattoo design for reproduction. Third, at least some of its usage may fall under a fair defense. But, for companies planning to recreate a potentially copyrightable tattoo, it may be better to ask for permission for its reproduction.