A spate of recent US cases suggests that, far from liberating you, tattoos might restrict your freedom in a number of unexpected ways. Tattoo artists are increasingly seeking to enforce the copyright in their artworks – even after those artworks have been permanently etched onto someone else’s skin.
A tattoo is undoubtedly a work of graphic art and is thus copyrightable in principle. Although generic tattoo designs (think, “the anchor”, or “I heart Mom”) will generally not be sufficiently original to attract protection, bespoke designs are prima facie owned and controlled by the artist themselves, not the wearer of the tattoo.
Of course, it is possible to assign copyright. For example, the artist and the client can enter into an express or implied agreement to govern the ownership of copyright in the tattoo. Alternatively, as is often the case, if the client contributed to the design and expression of the tattoo it may be a work of joint ownership. But when these agreements are not entered into, the tattoo artist may retain all the rights that come with copyright in an artistic work.
This is concerning, as tattoo-wearers expect that they have the freedom to show their skin publicly, and to be filmed, photographed and drawn, without having to get permission from the tattoo artist.
In 2012, a video game developer (THQ) was sued by tattoo artist Chris Escobedo, because the game featured an animated version of MMA fighter Chris Condit. Mr Condit’s lion tattoo (designed by Chris Escobedo) was reproduced as part of the animation, without the permission of the artist.
A similar dispute arose in 2016 between video game developer Take-Two Interactive, and tattoo designers Solid Oak Sketches. The tattoo artists sued Take-Two Interactive for reproducing Kobe Bryant and Lebron James’ tattoos in an NBA Basketball game. Once again, the tattoo artists claimed ownership of the tattoo artwork, and argued that Take-Two Interactive should have paid a licence fee for the use of the familiar tattoos in the game.
The fact that all of these cases ended in settlement payouts to the tattoo artists suggests that tattoo artists retain copyright in their works.
While uncertainty still exists, there are certain legal principles which may safeguard the ownership of ‘your’ tattoo.
It should be noted however that subsequent use of a tattoo may be limited to the use for which it was originally commissioned. For example, if the tattoo wearer wishes to display their tattoo in advertising campaigns (or video games for that matter), and the artist was not made aware of that fact when producing the design, the tattoo wearer will not be able to use the tattoo for that purpose.
Tattoo wearers may be further protected from unwanted infringement claims by the operation of implied licences from the tattoo artist. Incidental reproduction of the tattoo for example in a photograph or film is likely to be covered by an implied licence between the tattoo artist and the wearer. Once again however, if the tattoo wearer wants to commercialise his or her tattoos, it may be necessary to negotiate an express licence with the tattoo artist.
For further information or assistance with your intellectual property and technology related matters, please contact Jimmy Gill.