The right to bare arms: can someone else own rights in your skin?

Your tattoos are unique, deeply personal, and a true reflection of your freedom, so you can do whatever you like with your tattoo - right?! Wrong.

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.

The general legal position

As we know, copyright in an original artwork ordinarily belongs to the artist. The owner of the copyright in an artistic work has the exclusive right to control where and when the work is reproduced, when the work is presented publicly, and importantly, has the exclusive rights to profit from that work.

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.

Legal hangovers

This has not stopped a group of tattoo artists in the US from seeking to control what the wearers of their tattoo designs do with their bodies. For example, in 2011 the tattoo artist who designed Mike Tyson’s distinctive face tattoo sued Warner Brothers, claiming an infringement of his copyright in the design after it was reproduced in the Hangover 2 movie.

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.

So, should I be worried about my tattoos?

Unfortunately, the US disputes settled prior to litigation, meaning the courts did not get an opportunity to decide the issue. Australian courts have been similarly deprived of the opportunity, meaning the issue of whether tattoo artists do in fact continue to own rights in a tattoo, even after it has been inked onto a living body, remains unsettled.

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.

Commissioned works and implied licences

In circumstances where an artistic work (including a tattoo) has been commissioned and paid for, for a private purpose, the person commissioning the work generally owns the copyright.  So provided that the tattoo was indeed “commissioned”, in the sense that it was created at the request of the tattoo wearer rather than before, tattoo wearers can rest easy knowing that the fundamental copyright likely rests with them.

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.

Moral rights

The question of tattoo ownership is further complicated as a tattoo artist can exercise his or her moral rights in respect of a tattoo design. Moral rights remain with the artist even if the copyright in the tattoo design is assigned to someone else. Moral rights ensure that the work is properly attributed to the artist and that the work is not treated in a way that is harmful to the artist’s reputation. Depending on how a tattoo wearer uses the tattoo, the moral rights of the tattoo artist may come into play on the question of ownership and infringement.

If in doubt – get it in writing!

In light of all this, the safest approach is to get a written assignment of all copyright from your tattoo artist, including a right to use the tattoo in any way you see fit, and a waiver of moral rights - especially if you are considering becoming a world famous sports personality!

For further information or assistance with your intellectual property and technology related matters, please contact Jimmy Gill.

Contributors

Amelia Cooper Lawyer
Elizabeth Kemp Graduate