Public opinion on tattoos has changed over the years, and society appears to be shifting away from ‘body art’ and ‘inking up’ being considered taboo or unconventional. Those who were previously shunned for expressing their creativity and love of art have started to see positive social change, as the world evolves beyond outdated and archaic attitudes.
And this includes the legal industry.
As legal professionals, we have always been told that tattoos, body piercings or ‘unnatural’ hair colours are unprofessional. Despite this, pioneers have persevered, including our Founder, Alice Stephenson, and our Trade Mark Paralegal Kay Szawlis, who have defied the status quo to prove once and for all that personal expression and vibrancy are to be celebrated.
Fiery locks? Piercings galore? Inked arms? Fortunately for you, the era of self-expression has well and truly arrived.
Before we celebrate this new era however, there is one niggling issue...
In life, most things can be commercialised, and body art is no exception. You might be ready to dive in and ink up, but who truly owns a tattoo and are there any limitations to what you can have displayed on your body? Let’s find out.
Who owns the IP in a tattoo?
Tattoos are a particularly personal choice, and while some might decide to have something bespoke and original, others prefer to pay homage to their favourite singer, footballer or maybe even a Van Gogh painting. One of the core tenets of intellectual property law is that it allows ordinary people and businesses alike to protect and preserve their commercial or personal assets. With that in mind, is a tattoo a personal asset? Can it be protected?
There are many types of IP rights, from trade marks, to patents and designs, but the primary right of interest when discussing tattoos is copyright. Copyright arises automatically when a ‘work’ that qualifies for protection is created and ‘fixed’ – that is, taken out of the mind of the creator and turned into a tangible, material form. The work must be original, meaning it needs to be a product of an author’s judgement and skill, and must not be copied – it is the author’s own ‘intellectual creation’. There is no process in the UK for registering copyright.
Copyright is all about preserving the interests of the author / owner, giving them the exclusive right to, among other things, copy, reproduce, adapt, and publish the work. There are various types of works which qualify for copyright protection, but most tattoos (other than word-only ones) constitute ‘artistic works’. That is, assuming they meet the criteria we mentioned above.
In law, the threshold for originality is fairly low and generally means that the work has been independently created by an individual with a level of skill and judgment and not simply copied. So, this should be easily satisfied. However, in the case of body art, is a tattoo deemed to be ‘fixed’? Most likely, yes. They may fade but they are being applied to a ‘medium’ and will remain on the skin unless removed, and so will likely satisfy the fixation requirement
However, the application of the art to another’s body creates a whole other set of legal issues that have played out in recent court cases. Applying an artistic work to a body isn’t like committing something to a canvas; it doesn’t create a tangible ‘object’ that can be bought, sold and displayed like most copyright works. So, does the application to someone’s body create a separate copyright work, which is owned by the person with the tattoo? Does the person have privacy rights, personality rights or even basic freedom of expression that supersede copyright when sharing images of themselves (and in turn the tattoo)? Is there a public interest in allowing those with tattoos to be precluded from legal action based on the display of their own bodies? Does this change if the work is shared for commercial purposes? Plenty to consider.
The art in the original tattoo design, assuming it is indeed an original creation, is therefore owned by the original creator; in other words, the artist who drew it in the first place.
When that design is directly copied and inked into someone’s skin, it becomes a part of that person’s body and physical identity but remains a copy of the original copyright work. Whilst for the average person on the street, this will generally not be an issue, celebrity duo David and Victoria Beckham found out the hard way, artists might not be happy if you then go around advertising your body whilst it is covered in someone else’s designs and make a profit out of it. Louis Molloy, the artist who created many of the Beck’s tattoos, definitively stated that he would sue the couple if they tried to use the designs in promotional campaigns without a licence. Yikes.
The first tattoo top tip is therefore to design your own tattoos!
However, if you’re not so artistically inclined, you may ask an artist (or commission another third party) to create something for you. If you do, you might want to put agreements in place before you fix it to you permanently, particularly if you commercialise your image. This may be in the form of a licence or assignment from the original owner. A licence allows the original artist to retain ownership of the art, whilst also profiting from its (specified and controlled) use by others (its licensees).
An assignment is a written contract that will ensure that all rights in the work are assigned, and any rights that cannot be assigned (such as the artist's right to be identified, known as ‘moral rights’) are waived. This is the safest route for anyone wanting to ensure they can exploit their ink however they like in the future!
Licences can be expressed (signed) or implied (deemed to exist based on the circumstances). For ordinary people, a licence from the artist is likely to be implied given the artist knows that, once the tattoo is finished, that person will have a copy of the art on their body forevermore, and will display it to the world.
However, whether this would extend to commercial use is not so clear; US Courts have decided it does, if artists tattoo celebrities (and therefore know that their work is likely to appear in adverts, games, television programmes and so on), but the EU takes a much stricter position. Plus, it could get even messier if someone became famous after getting their tattoos, for example.
What happens if someone copies someone else’s tattoo design?
Any artist who copies the tattoo design of another artist is infringing the copyright in the artwork. The issue of copying arises for all creatives, including graphic designers, painters, and tattoo artists alike. Things can get complicated when a tattooist’s client requests replicas of a tattoo that another artist developed, perhaps seen on a celebrity’s arm on Instagram. There is, however, a fine line between infringement and inspiration. Every tattoo artist has their own unique way of working, designing, and applying ink, and most will add their own flair or technique to their work. With that in mind, it's very rare to have a carbon copy of the original work. This means that, in many cases, straightforward infringement doesn’t occur as easily if the second tattoo can be considered a derivative work, separate independent creation or adaptation of the original. However, for this second tattoo to be considered an acceptable adaptation, the changes must be quite significant, and a substantial part of the original work must not be reproduced. With that in mind, relying on this form of ‘work-around’ is therefore somewhat risky and it may actually be easier to simply create a new work!
It’s not just individuals or influencers who are at risk of infringing copyright without realising it. Corporations, businesses, and enterprises can also get caught in the act when they aren’t paying attention or lack a proper understanding of the significance of (sometimes unobvious) assets. Without an assignment, the use of a tattoo in a commercial context is controversial and potentially law-suit worthy.
A case of this nature arose when the creators of The Hangover: Part II were sued for copying the likeness of Mike Tyson’s tribal face tattoo, (designed by S Victor Whitmill) on Ed Helms’ face. We all remember the scene: the men wake up in a hotel room after a wild stag do in Vegas, only to be greeted with the hangover from hell and a snazzy new face tattoo. The dispute was eventually settled out of court but, so concerned about the claim, Warner Bros. agreed in court papers to digitally alter the facial design for the DVD release. The influence and power of IP is truly a force to be reckoned with.
A little closer to home, but across the pond, the Court of Appeal in Ghent (Belgium) took a slightly different position. The 2009 case concluded that the tattoo artist’s rights in the copyright work was limited by a person’s personality rights and that the artist had no right to prevent the client from being photographed, or from photographs of the tattoo being spread online. The Court made a clear distinction between the copyright in the original design of the tattoo, and that which is physically reproduced onto a person’s skin, suggesting that the original artist would have, among other things, no moral rights over the latter. The judges even went so far as to say that separate copyright may exist in the tattoo itself, which would be owned by the person who wears it.
In the UK, we don’t have a lot of case-law covering tattoos, but ‘personality rights’ are not a fundamental principle of law here and so the decision of a UK Court may well be different. Nonetheless, this case, and others have served as useful precedents for IP rights and inky inventions.
Are there any exclusions or defences to IP infringement in a tattoo?
In short, yes. The Copyright Designs and Patents Act 1988 (the UK’s primary Copyright law) lists a standard set of “permitted activities” which would exclude someone from infringing copyright works.
Most relevant to tattoos are the following:
- Personal copies for private use;
- Caricature, parody or pastiche; and
- Incidental inclusion of copyright material.
The first is the primary defence for use by the person bearing the ink, in taking photos of themselves, sharing images of the tattoo on their personal Facebook and so on. However, it will not apply to tattoo artists who charge for their services. It is also unlikely to apply to tattoo-bearers that are being paid for social media content etc.
The second of the above defences was put forward in the Hangover case but the judge rejected it in his initial opinion, as the tattoo was not directly linked to the plot of the movie and was not enough of a deviation from the original work to constitute a parody.
A US defence that echoes the third on the list has been used to defend the use by computer games companies, depicting famous celebrities within their games (and in doing so, showing their tattoos). Given the minor nature of the graphic reproductions when considering the games as a whole, and the low likelihood of a consumer spotting them, it was a successful defence, albeit not entirely identical to the UK’s.
In addition to the above, public interest defences such as freedom of expression and right to privacy are often levied in cases such as this and have often been found to outweigh the rights of the copyright owner.
What remedies are available if there is an infringement?
If you’re a tattooist, and you find yourself amid unfriendly legal discourse over your latest tattoo triumph, or in fact, you need to consider action against an inky copycat, you should be aware of the recourses available to authors of copyright works. These include:
- An Injunction – If someone heard on the grapevine that you were planning to nick their design in a tattoo, they might obtain an injunction from the court to stop you before you’ve even finished putting your gloves on.
- Damages or account of profits – Where a profit has been made as a result of the infringement, the IP owner may be entitled to compensation. This could also extend to the costs involved in pursuing a claim.
- Delivery up/destruction of the offending article – The one that might not be physically possible once a tattoo is inked. However, the original drawing or stencil used may be ordered to be returned to the owner or destroyed. Of course, tattoos can technically be removed, but given this is a surgical procedure on the body, the courts are much less likely to be inclined to order against a person.
We’ve explored and analysed the different levels of ownership in tattoo artwork, from Posh and Becks to adult comedies. And, as you can see, the rights associated with tattoos are often complex and difficult to pin down. To avoid a lengthy lawsuit, let’s summarise: copyright arises automatically in artwork that is fixed and original – and the bar to meet these criteria is pretty low – so be sure to check that you’re not stepping on anybody’s toes before firing up the needle!
It’s worth remembering however that, whilst commercial use isn’t a pre-requisite for copyright infringement, legal issues relating to the copyright in tattoos will most likely impact tattoo bearers whose image and likeness are valuable and monetizable assets, such as celebrities and influencers.
So…moral of the story? Think before you ink.
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