Have you ever found yourself wondering who owns the copyright of a tattoo? Most of us would say that the artist is the copyright holder, and generally, that would be right.
But what about tattoos where the buyer brought forth an idea first -- or wants their own design tattooed?
Does work-for-hire artwork belong to the employer or the employee?
Is there a point when the tattoo becomes a work of collaboration? If so, should a joint copyright ownership be the case?
There has been an increasing amount of discussion over copyright and tattoos in the last decade or so.
Perhaps because tattoo copyright disputes are not particularly common, copyright regulation of tattoos is not a topic expressly discussed within copyright law.
Big disputes, however, between popular artists, celebrities, and large companies, have become more frequent, and have gained significant media attention as a result.
There have been cases of celebrities having their tattoos replicated for video games, films, or even tattooed on other people, all without permission from the original artist. Is this allowed?
Tattoos become a part of a person’s physical identity, and something that is widely associated with them and their personal brand, which can often separate the art from the artist.
Celebrities are often featured in magazines and other forms of media, and so their tattoos, when visible, can become just as famous as them. The tattoo becomes an integral part of their persona, and the artist is not usually thought of as the owner of the piece.
But is the artist the owner?
The artist is usually the one to dispute copyright infringement when they see their artwork being used for anything other than the intended purpose.
They are the ones who created the piece, and so, theoretically, should be the ones holding the copyright.
Some have argued that, as the artist knows the public attention that comes with a celebrity, they should be prepared for the eventuality that their tattoos are going to appear in other forms of media, and without credit most of the time.
The topic has been discussed by intellectual property experts, and has received mixed opinions in the courts.
What tattoo copyright regulation is already in place?
The main two strictly upheld tattoo copyright regulations are: that artists cannot take another artist's work and tattoo it onto their own client. And: the art that they use for their clients must be original and unique to that particular artist.
Some designs or design aspects of a tattoo may, however, inevitably be in violation of copyright laws, and could well be an infringement.
This is particularly applicable to celebrities whose fans may get replicas of their original tattoos. In cases like this, it would be impossible to stop infringement of a design in every case, due to the volume of replicas.
The same applies for fan tattoos of characters from large entertainment companies such as Marvel or Disney.
There are simply too many fans of the works to stop every one of them from getting a tattoo which may be in infringement of copyright.
These cases, then, are often justified as fair dealing, especially as the replication is not done for commercial reasons and will take away little to none of the original artists’ revenue (in most cases).
What happens when tattoo art is used for commercial purposes?
Tattoo artists do often have a leg to stand on when it comes to their original designs being repurposed for commercial reasons.
When companies use a replica of a celebrity's tattoo without permission from the copyright owner, it can be argued as copyright infringement.
Fair dealing is not applicable to a large company, which is more likely to take away revenue from the creator(s).
Furthermore, the wearer of a tattoo (or anyone else other than the artist) cannot repurpose the design for commercial purposes, either, unless they own the copyright.
This means that art created solely by the wearer, but tattooed by a tattoo artist, still belongs to the wearer – and designer – of the tattoo.
For tattoos created in collaboration with the artist, the permission of both collaborators will be required for the art to be produced in any other way.
For works that have been reused without the copyright holder’s permission, then the copyright holder has the right to dispute the use of their work, and this applies, also, to tattoo artists.
Copyright in regards to tattoos is a topic that has gained momentum, but needs more time and attention to develop.
There are still a lot of grey areas, and what might apply in some cases, may not be the same for another, depending on the courts and circumstances.
Some have settled upon the notion that the tattoo artist has ownership over the art, while the wearer gets to exclusively use it and integrate it into their public image.
Others still believe there are other options for how the copyright can be fairly distributed.
Perhaps the media attention surrounding tattoo copyright cases will signify change in the way that tattoo copyrights are regulated, and will bring some clarity to the situation.
Disclaimer: The information given on this website does not constitute legal
advice. We recommend that you seek specialist legal advice in accordance with specific circumstances.
