“Tattoos are a largely uncharted territory in copyright law”

by Walter Olson on September 5, 2013

If you pay an athlete or other celebrity for the right to depict them in a poster or videogame, do you have a right to show an accurate rendering of their tattoo without further seeking permission from the original tattoo artist? It’s widely agreed that tattoos enjoy some degree of copyright protection, most obviously so in the case where an infringer has swiped an original design for purposes of tattooing someone else. Damages, at least, would be available in such a case, though it might prove hard to persuade courts to exercise the power accorded them by 17 U.S.C. § 503 to order the “impounding and disposition of infringing articles.” [Ira Boudway, Bloomberg BusinessWeek]

{ 15 comments }

1 Fubar 09.05.13 at 12:27 pm

Impoundment probably depends on whether the infringed artist is a member of the MPAA, RIAA or similar copyright industry organization for tattoo artists.

I try to be cynical, but these days it’s difficult to keep up with the professionals.

2 DensityDuck 09.05.13 at 1:47 pm

There was a big hooraw about the bit where the guy in “The Hangover 2″ gets Mike Tyson’s face tattoo; apparently they neither compensated nor credited the original tattoo artist, who threatened to sue over it.

I talked to a friend of mine who’s a tattoo artist, and she says that mostly it hasn’t come up because people steal from each other all the time, and that most of the aesthetic value of a tattoo comes from the execution anyway (which can’t be duplicated exactly, even by the original artist.)

On the other hand, that means that copying tattoos is more like a cover band than anything else, and I’m not really clear on what’s been decided about cover songs.

3 kimsch 09.05.13 at 9:10 pm

What about the bad tattoos that are covered up? Is the tattoo artist doing the covering “defacing” the work of the original artist? What about “home made” tattoos? Those done by a friend or by the tattooee? And if the infringing tattoo is in a non public space, who’s to know about it?

4 prior probability 09.06.13 at 12:57 am

The question is, should tattoo creators be protected under copyright law, or should tattoo copiers be able to copy tattoo creations at will? As Coase might say, this is a reciprocal problem

5 Ben Challis 09.06.13 at 6:38 am

I write on the 1709 copyright blog and there have been some interesting developments here: I did a brief blog on tattoos and copyright law here http://the1709blog.blogspot.co.uk/2013/03/tattoo-artists-bask-in-rise-of-their.html and there are links to other articles

Recently there have been some more cases – a case involving the San Francisco 49ers quarterback and tattoo-lover Colin Kaepernick, and Nike’s attempts to use traditional tatau – tattoos of the Pacific which are considered a rite of passage for men and women. More here
http://ipkitten.blogspot.co.uk/2013/08/on-copyright-and-cultural-issues.html

Finally there has been a Belgian court’s decision: according to the court, a distinction must be made between the copyright in the design of the tattoo (the actual design), and the copyright in the tattoo as is reproduced on the body of a person. The court held that copyright may subsist in a tattoo and that the person who realises it may be recognised as the author. However, the reproduction right of the tattoo artist is limited to the actual design. This means that, while he/she may execute the same design on another person’s body, the tattoo artist may not interfere with the activities of the person bearing his/her tattoo. More here http://ipkitten.blogspot.co.uk/2013/08/more-on-copyright-in-tattoos-belgian.html

6 Aaron Perzanowski 09.06.13 at 8:58 am

Lawsuits in the tattoo industry remain incredibly rare. As I’ve written about in considerable detail here, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2145048, that’s largely because the tattoo industry has developed a set of social norms that discourage and sanction copying, independent of the rules imposed by copyright law.

Those norms emphasize the autonomy of clients and universally discourage the copying of custom tattoo designs. That’s not to say copying doesn’t happen; it does. But it has social, reputational, and sometimes economic consequences.

7 Veracitor 09.06.13 at 1:40 pm

I like the way Escobedo is quoted at the end of that article reviving the legally-irrelevant but very-appealing-to-the-naive “sweat of the brow” theory (a variation on the Marxist labor theory of value). He deserves a big royalty, he says, because it took him a long time to inflict the tattoo. Of course proper judgement would turn on the originality and popularity of his work… perhaps any moderately-experienced tattoo artist can ink a generic tiger, and the work is only popular because it’s riding the coattails of the athlete who displays it?

8 kimsch 09.06.13 at 6:13 pm

What about a situation like this: Person A sees a tattoo on Person B that A really likes. A, of course, can not purchase the tattoo from B. A asks B where B got the tattoo. B either doesn’t remember, the shop closed up, or the shop is very far away. A takes a photo of the tattoo to a shop to have that particular tattoo done. Would this be infringement?

9 Ben Challis 09.07.13 at 3:07 am

I can only speak as a UK lawyer BUT (and this may not be the answer people want to hear) IF the tattoo is original – and copyright could subsist in the tattoo as an artistic work – then yes, making a copy would be an infringement of the original author’s copyright. Here in the UK we do not have the system if statutory damages that applies in the US – and over here I would imagine the new tattoo artist making the one copy (and the behest of a customer) is a single instance of infringement and its hard to see the sense in the original tattoo artist bringing a legal action. That said, it is possible that the new tattoo artist might NOT exactly copy the design in his/her execution – and just be ‘inspired’ and/or transform the original work and so copyright might not be infringed: there have been a couple of US cases on transformative art, one called Cariou v Prince, and another where the punk band Green Day were taken to court by Los Angeles-based artist and illustrator Derek Seltzer after featuring one of his posters in a video – the band prevailed on the grounds of fair use. Aaron Perzanowski’s comment above also neatly explains the social, reputational, and sometimes economic consequences of copying in the tattoo world.

Cariou v Prince http://www.ca2.uscourts.gov/decisions/isysquery/5da8dc66-179e-4dc0-94cc-09e213bfffe3/1/doc/11-1197_complete_opn.pdf

10 Alan K. henderson 09.07.13 at 3:34 am

Just remember the precedent set by Bassanio v. Shylock: plaintiff has claim only to the flesh that the tattoo covers, no more.

11 Alan K. henderson 09.07.13 at 3:35 am

Oops, that’s Shylock v. Bassanio (plaintiff comes first).

12 peter 09.07.13 at 8:32 am

Could the tattooist be considered ‘work for hire’ and the owner of the tattoo be the one with the tattoo?

13 Hugo S. Cunningham 09.07.13 at 11:16 am

About a century ago, British humorist Saki spun a tale from tattoos and intellectual property law:

“The Background”
http://www.eastoftheweb.com/short-stories/UBooks/Bac.shtml

14 STALIN 09.08.13 at 1:24 pm

Tattoos are their own reward(punishment). And after thirty years it will become a blue splotch. Now with the multicolors, a brown splotch. What a deal.

15 Rachel 09.08.13 at 7:33 pm

Tattoos have been around for centuries, having to know if your are infringing on copyright laws would take one less avenue away when it comes to branding, free advertising and freedom of expression. When generally if you get a bad tattoo usually the only person who is going o pay the consequences is you.

Comments on this entry are closed.