As tattoos become more and more mainstream, so too does the blatant pirating of original works of art. What protection does the artist have if their work has been copied? Are tattooists protected by copyright laws? How much does a tattoo have to be changed to be accepted as original or at the very least, not a copy? So many questions, so few answers it would seem.
Let’s begin with a few concepts:
Copyright Basics: a set of laws that determine who has the right to publicly display, perform, copy or prepare derivatives of work. It applies to “Original Works or Authorship” both published and unpublished and includes writing, art, music, dramatic works and other intellectual property. A copyright remains with the artist unless they sign it over.
Infringement: When someone displays or reproduces a copyrighted piece without permission of the author.
Time frame: an artist work is protected for their life, plus 70 years. In other words, the copyright passes to the estate.
Tattoos: must prove the copied work has a negative effect on the work’s value or potential market.
Now that we have that out of the way, it would be fair to say that the debate on whether tattoos qualify as copyright material and whether a tattooist can claim copyright on someone’s skin has been receiving more and more attention. Tattooists are artists and in many cases are creating tattoos that do qualify as “original works”. It goes without saying that an artist should have some recourse if an original piece is copied and reproduced either onto a subject or into print. This is an outright infringement of the artists rights and should be recognized as such.
The tattoo industry is a very different beast, with a history of borrowing from previous designs to create something new and individualized for the customer. I have heard a tattooists say they were instructed that a piece needed a minimum of 4% change to qualify as being safe. When you consider how little change that would be, it seems unlikely, but is this the understanding out there? Well it is a myth, in fact even 20 or 30% is not enough. The Fair Use Guideline is that you can use up to 10% of a piece, any more and you are at risk. If your tattoo is put next to another, would someone say you based it on the original? If so, you are at risk.
Victor Whitmill, an American Tattooists filed charges against Warner Brothers for the commercial use of the tattoo on Mike Tyson’s face. He claimed the producers of The Hangover Part II pirated his design in the film and ad materials when the character Stu gets a tattoo identical to Tyson’s after a night of partying. The two sides amicably resolved their dispute out of court. In this case, there was no question the tattoo design was copied and so it shouldn’t be a surprise that the artist had a legitimate case.
There have been other cases involving the likes of David Beckham, Ricky Williams (NFL Player) and Carlos Condit (UFC Fighter) who’s tattoos were either featured or included commercial material which attracted some attention over the past few years. The Beckham case was settled out of court, the Williams case was dismissed at the request of the plaintiff and the Condit case is going through its third appeal. The point that these cases need to resolve is whether an artist can control where and how a public figure can appear.
If these cases show us anything, it’s that there is a hell of a lot of grey area when it comes to copyrighting tattoos. If copyrighting is granted, how far should this protection extend? Should a tattooist have the right to prevent me from showing my tattoo in public or being photographed? Many believe the courts will use “implied consent” meaning in the absence of a contract, the artist gives up the right to control public displays or commercialization of the tattoo.
There would seem to be some recognition that when tattooing someone “famous” your work will end up in the public eye at some point. We have all seen the Rihanna, Adam Levine and Angelina Joile tatts, not to mention all the NFL and NBA players out there. I would put forth the argument that in cases where the famous are simply going about their daily lives, copyright infringement shouldn’t be an issue, however in cases like the Hangover II where a tattoo is replicated, financial reparations would be required.
It should be noted that the NFL has advised the Players Association to ensure their members get waivers from tattoo artists to avoid ending up in court at a later date. I am sure that this will become the standard especially in tattoos for celebrities.
If I buy an A.Y Jackson or Emily Carr print, I own the print, but I don’t own the copyright. The copyright stays with the artist and continues on for 70 years after their death. I have no right to reproduce the print display it in a commercial or profit from it in any way. Why does this standard get confusing when it comes to tattoos? The simple fact that the tattoo is on someone else adds another dimension to the argument. Of course, reproduction is infringement, but where the line gets drawn as to how much control the artist has over the individual will only be determined once someone refuses to settle out of court and a precedent is set. The entire debate may need to be solved at some point by the Supreme Court, but in the meantime, if you create an original piece, make sure to keep the sketches that you used in your design and consider a waiver or contract of some sort to protect your interests.
Now what about tattooing a character on someone? Mickey Mouse, Yoda etc. Well, lets leave that debate for another time.