You’re considering a lot of different things when thinking about inking a new tattoo, but copyright infringement probably isn’t one of them. But copyright laws come into play in various ways when tattooing new work – whether you’re the artist whose designs are being inked, the tattoo artists drawing your own work, or an artist merely using the influence and inspiration of tattoo art in your oeuvre. In order to better understand who owns the copyright in tattoos, let’s illustrate the following four examples.
You have been considering getting a tattoo of your family’s crest, but you wanted to make sure it was a little more individualistic than the standard flag. Instead, you drew your own crest and swapped some of the historic symbols with some drawings of your own. Since the design is pretty standard, save a few changes, you’ve gone to a local tattoo shop to have the work done.
You have been following a tattoo artist on Instagram for some time and you are blown away by their designs. There are a few in particular you like, so you reach out to the artist. She advises you that all designs are her own, and she’ll never tattoo the same work twice. Instead, you need to give her some inspiration about what you’re looking for – a bird, a face, your favorite poem – and she’ll come up with something wholly original and unique just for you.
You’re a contemporary painter and you’ve just found out that one of your works has caught interest across social media channels. Before long, you’re even finding users who have used an image of your work as tattoos. You’re flattered, but a little miffed: no one had bought your piece, and yet people clearly like it. Instead, tattoo artists around the country are the ones making money off of your work product.
You’re a photographer and you’re completely fascinated by people who are covered in tattoos. You set out on a quest to do as many portraits as possible with several willing subjects, who agree to sign a waiver and understand that the copyright in the images belongs to you. At your subsequent exhibit, you’re a wild success, selling nearly every work for a very good sum. Not long after, you receive a demand letter from a tattoo artist, alleging that the tattoos in your images are his work, so you are therefore liable for copyright infringement. The tattoo artist is demanding compensation for the offense.
Each and every one of these instances is loaded with copyright issues, which makes tattoo art one of the more complex copyright scenarios one can encounter. You have a greater chance of running into copyright issues from work on your skin than work on a canvas! Below, we’ll discuss what to do each scenario, while giving artists a road map for protecting their work against copyright infringement.
Licensing the Copyright in Tattoo Art
U.S. Copyright law protects original works of authorship by assigning certain protections, or rights, to creators. In order for something to be given copyright protection, the original work must be fixed in a tangible medium, with a minimal degree of creativity. While unconventional, affixing a drawing on your skin is tangible. Likewise, a tattoo of a catchphrase or a word (think “Mom”) probably won’t be protected by copyright.
Since most tattoo artists are working with original designs, it’s likely that most tattoos will be protected by copyright law. At that point, it’s important to understand that the copyright owner holds all of the rights to the work – the owner has the right to make copies of the work, distribute the work, display the work, publicly perform the work, and make derivatives of the work. However, copyright owners can license or transfer these rights to other parties. For example, most legal scholars would agree that a tattoo artist offers his client an implied license to display the work. It’s important to be clear that a license to display does not grant a license to any other inherent right of copyright protection – meaning that you can still be liable for copyright infringement if you reproduce or make derivatives of the work. While it may seem counterintuitive that someone can retain ownership over a part of your skin, it’s a distinction that can wind up costing you an unnecessary legal headache.
Understanding Copyright in Every Tattoo Scenario
Just like individuals need to be careful to abide by copyright law, tattoo artists need to be mindful as well. A symbol as identifiable as a family crest, for example, could land an artist in hot water if there is copyright established for that work. Our first scenario is complex because it involves both an identifiable symbol and the original work on the part of the client instead of the artist. Does the tattoo artist enjoy copyright protection of the work, merely because she inked your drawing on you? Technically, yes: copyright law allows more than one person to hold the rights in a work. Likewise, you can protect yourself from a potential squabble with your artist by creating a contract that states otherwise. For example, you may want to enter into a work-for-hire contract with your tattoo artist.
Work-for-hire agreements allow someone other than the person who created the work to be considered the author of the work. The situations where this occurs are laid out in 17 USC §101, and apply where a work is:
- Prepared within the scope of employment; or
- Specially ordered or commissioned for use as a contribution to a collective work, as part of a motion picture or other type of audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as an answer for a test, or as an atlas.
Most importantly, a work-for-hire arrangement requires a written contract – meaning that if you’d like to set up this kind of scenario with your tattoo artist, you’ll need to get them to agree to it.
In our second example, you might be wondering whether your nominal collaboration with the artist would constitute a work-for-hire scenario. After all, you told her what you wanted, and she designed based on that feedback. But a work-for-hire likely won’t be available, since the artist’s designs are entirely her own. She probably wouldn’t agree to sign away the copyright to something that is mostly her creative product.
Artists Should Also Consider Copyright Harms Involving Tattoo Art
Artists must also be aware of issues that can arise with their own work involving tattoos. In our first artist scenario, a painter was disturbed to find that his work was being tattooed on various people, without any compensation for his time. In this instance, the artist unequivocally owns the copyright in his work, but should he have to share that copyright protection with the tattoo artist? Probably not. After all, the tattoo artist is copying a work by another artist – he’s therefore infringing on a protected design. In fact, all tattoo artists should be cautious of the origin of a drawing or design when tattooing work brought by a client. Being careless could result in legal drama over copyright infringement.
Copyright considerations also come into play for the photographer, who didn’t realize that the tattoos he photographed were an infringement of someone else’s copyright. Infamously, in 2011 a court decided this very same issue when Warner Bros. was sued by a tattoo artist whose work was predominantly displayed on actor Mike Tyson’s face. While the court acknowledged that a tattoo artist inherently hands over a license to display the work, the court was reluctant to conclude that Warner Bros. hadn’t infringed on the tattoo artist’s copyright protections.
Whether Artist or Client Here’s How to Protect Against Copyright Infringement Issues
While copyright protection exists at the moment of creation, its never a bad idea to register a copyright for your work as a tattoo artist, particularly if your work is extremely recognizable and frequently employs the use of the same patterns or techniques. Likewise, many tattoo artists use contracts to protect themselves from copyright infringement, by requiring clients to sign away their rights. Similarly, it’s advisable that you do your own homework before drawing a tattoo on someone without having a clear picture of the origin of that design.
As clients using their own original work, consider having a frank conversation with your artist about the rights you’d like to maintain within the work, in order to determine whether a work-for-hire scenario is possible. As an artist interested in working with tattooed images, just put yourself in the tattoo artist’s shoes – you wouldn’t want someone stealing your artwork, either.
Have you run into copyright infringement issues with your tattoo?