Tattoos and copyright: When the rules get under your skin.

Words and illustrations by Sharon Givoni

Whether it’s an original design, a cultural symbol or a brand’s trade mark, a tattoo can tell a captivating story. But does having something ingrained onto your body mean that you own it? How does copyright law fit into the picture? The answer may surprise you, and empower tattoo artists.

How does copyright law treat tattoos?

From a legal standpoint, the fact that an original artistic work has been applied to skin rather than canvas makes no difference. The work of a tattoo artist can be treated like that of any other creative and may be capable of copyright protection should the threshold requirements of the law be met.

There have been no court cases in Australia directly addressing the issue of copyright protection in tattoos, so the law in this area has yet to be explored. However, disputes that have arisen over tattoos overseas may shed some light and provide useful guidance on what could happen in Australia.

Who owns a tattoo?

The answer of who owns a tattoo design comes down to the question of who owns copyright, and how copyright law works.

In Australia, the rules of copyright are enshrined in a piece of law called the Copyright Act. This law basically says that a tattoo artist is the owner of their tattoo design so long as it is original and reduced to material form.

“Original” refers to a work that is not copied from another work. “Material form” means that the work needs to be actually tattooed onto skin. A mere idea of a tattoo (e.g. a bird with a blue beak) is just that – an idea – and unless, and until, it is given some form of expression, copyright protection will not apply.

Now that we know what is protected under copyright law, let’s talk about ownership.

Tattoo artists, if your client has an idea for a design – and even describes it to you in great detail – if you are the one to put it into tangible form, copyright law protects you and not the client. This is because copyright law protects the expression of ideas, not the ideas themselves.

Similarly, if a tattoo artist creates an original design that is tattooed onto a client, just because the client has paid for it to be tattooed onto their body doesn’t mean they own copyright. The copyright generally stays with the artist (unless it is otherwise specifically agreed upon).

Copyright in a tattoo design can be sold or transferred just like copyright in an artistic work, but this transfer of ownership requires a formal contract.

What does owning copyright actually mean?

At its heart, copyright law gives people a right to make money out of their original work and control its use.

This means that, as a general rule, a tattoo artist alone will have the right to use or exploit their original work in any way he or she wishes. The fact that a customer paid a tattoo artist to apply it to their skin will not suddenly mean a customer can reproduce it or have rights over the image, even though it is on their body.

What a client can and can’t do with a tattoo design?

This doesn’t mean that a customer cannot show off their great new tattoo in a photograph. After all, the law imposes limits on how much a tattoo artist can exert control over someone else’s body.

Yet, while anyone can display their tattoo proudly, or be photographed with it in the ordinary course of their day-to-day lives, this will not mean that they own copyright in the image itself or not be obliged to credit the tattoo artist (where appropriate).

There have been several instances in the United States where tattoo artists have claimed copyright infringement of their work. Notable examples include:

In 2005, American tattooist Matthew Reed commenced legal proceedings for copyright infringement against Nike, and its advertising agent NBA basketball player, Rasheed Wallace, when Wallace featured in a Nike advertising campaign. Wallace’s tattoo, which Reed had designed and created, was featured prominently in the advert without Reed’s authorisation.

In 2011, tattoo artist S. Victor Whitmill had a dispute with Warner
Brothers for copyright infringement over the movie The Hangover Part II, which featured a replica of Mike Tyson’s face tattoo on one of the lead actors’ faces.

In 2012, tattooist Christopher Escobedo demanded compensation from the videogame maker, THQ Inc. over the replication of a lion tattoo. Escobedo had designed the tattoo for a martial artist named Carolos Condit, whose character was featured in THQ Inc.’s UFC Undisputed video game.

The lesson is that just because a tattoo is permanently fixed onto a person’s skin, doesn’t mean they are free to reproduce it – or allow it to be featured or reproduced – in any way they want. Yes they may own their body but, weird as it may sound, they don’t own the copyright of the tattoo design.

This should give tattoo artists who create flash designs some level of comfort. Having said that, if a tattoo happens to be captured in a movie or photograph – even on a film extra in a miscellaneous scene – the law might treat it differently. Each case will turn on its facts and, of course, may depend on the commercial aspects of the situation.

When does a client infringe the moral rights of the tattoo artist?

Moral rights are a distinct set of rights held by an artist to ensure, among other things, that the artist is correctly attributed for their work where possible. For example, if a photographer was to create a series of photographs primarily featuring people’s tattoos, the tattoo artists should be credited. The law generally wants credit to be given where
it is due.

As well as a right to be attributed for their work, artists also have a right of integrity – that is, that their works are not treated in a way that may harm their honour or reputation. For example, a person may ask a tattoo artist to modify an existing tattoo in a way that is vastly different form the original, which could raise moral rights issues for the original tattoo artist.

While the issue of moral rights is more complex than simple attribution, the main point to take away is that moral rights are separate from copyright as they protect the personality of the tattoo artist’s work and add other considerations into the copyright mix.

When might a tattoo artist infringe copyright?

Of course, copyright law also gives people a right to prevent copying. On this basis, tattoo artists would be right to avoid simply copying images that clients bring in. The law does not excuse an act of copyright infringement simply because someone asks you to copy something. Sometimes it is better for a tattooist to just say ‘no’, not only because of the law, but also to want to maintain your authenticity and integrity as a reputable tattoo artist.

That said, the risks of copyright issues arising can be reduced if the image the tattoo artist is being asked to replicate is in “the public domain” – meaning it is no longer protected under copyright law. This may be true of historical, cultural or religious symbols. However, caution should still be taken as what is or isn’t protected under copyright law is not always clear.

What if a client wants a brand’s logo or trade mark as a tattoo?

Surprisingly, if a client wishes to have a registered trade mark replicated in the form of a tattoo, the brand owner (in most cases) can do little to restrict the use of the mark in this way, as it will not necessarily infringe trade mark law. But copyright laws may still apply.

Realistically, brand owners may be flattered by the enthusiasm shown for their business and resulting exposure to their trade mark.

In saying that, US-based Playboy Enterprises International, Inc. does own a registered trade mark for the Playboy bunny ear logo for tattoos, which could cause trade mark as well as copyright problems for anyone eager to get an artist to tattoo the mark on their body. So, from a legal perspective, tattooing a well-known brand or logo is not always OK.

As a tattoo artist, if your rights have been infringed, what can you do?

If someone infringes the copyright in one of your original tattoo designs and makes money out of it (say if they create a t-shirt range with your tattoo design on the front) you may be able to receive compensation (known under the law as damages or an account of profits).

Alternatively, a person could be ordered to publically apologise for the infringement of your tattoo artwork.

Further, without having to take legal action, you can make arrangements with potential users of your tattoo design for remuneration based on their use. An example of remuneration could be the licence fees that you would be entitled to receive for the exploitation of your work.

Conclusion

Tattoo artists should be pleased to know after reading this that original designs can be classed as artistic works and protected under copyright law.

However, on this basis, there may also be copyright implications when someone asks a tattoo artist to copy someone else’s art or someone else’s tattoo.

So if you’re a tattoo artist, when it comes to proving copyright ownership over your original designs it is important to retain archives of images of your tattoos and the date that they were created – through digital photographs or some other record-keeping method.

It is important that tattoo clients understand and respect a tattoo artist’s copyright and moral rights, and obtain the artist’s permission before reproducing a tattoo design in any format where the tattoo is a focal point.

Tattoo artists should take practical, proactive steps to protect their work. For example, a set of terms and conditions provided to a client before work begins should ideally address copyright issues.

These are some of the issues that need to be considered before, figuratively speaking, the ink is dry. For more on these topics, read Sharon Givoni’s Owning It: A Creative’s Guide to Copyright, Contracts and the Law, which goes into the legal issues facing creative professionals in more detail.

TAKEAWAY TIPS

A tattoo design can be treated as an artistic work under the Copyright Act so long as the design is original and in fixed form.

The moral rights of an artist extend to tattoo artists in many circumstances.

As a general rule, if someone gets a tattoo that replicates a well-known trade mark, this will not amount to a trade mark infringement but can give rise to copyright issues.

As a tattoo artist, if you are asked by someone to copy an image they have not created themselves, it may be prudent to check that your client has permission from the copyright holder to have the work tattooed.

If your original tattoo design is copied and used for a commercial purpose, you may have a legal claim.

About the author

Sharon Givoni runs a legal practice based in Melbourne and advises clients in the tattoo industry Australia-wide. www.sharongivoni.com.au

 About the book

Sharon Givoni’s recently published book, Owning It: A Creative’s Guide to Copyright, Contracts and the Law (Creative Minds, 2015) aims to demystify the law for Australian creatives and small business owners regarding the protection of tattoos, artistic works, copyright, trade marks, reputation, contracts and more.  For more information about Owning It, visit www.creativemindshq.com/owningit

IMPORTANT DISCLAIMER: This article is of a general nature only and must not be relied upon as a substitute for tailored legal advice from a qualified professional. Sharon Givoni owns copyright in this article.

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