Who Owns The Copyright On A Tattoo?

from the and-what-if-you-want-to-change-it dept

Here's a fun hypothetical concerning copyright and tattoos:
My question is this, if a tattoo artist creates a unique design for a client, then this is tattooed on to the aforementioned client, does the tattoo artist still own any intellectual property rights (namely copyright) over this piece of art? If the tattooed subject were to go on to a profession (I can only think of modelling at this precise moment) where the tattoo was constantly broadcast to the general public, and the designer viewed this to be derogatory to their work, would they be able to litigate!"
The 1709 Blog, which posted this question from a reader, also added a separate question:
If the tattooed subject wishes to have the tattoo amended or removed, [does] the tattoo artist [have] any ground upon which to object?
Good stuff for a law school exam, I would think. Of course, plenty of tattoo artwork is actually covered by copyright -- which quite frequently goes ignored. But if we're talking about a unique piece of artwork, and no clear assignment of the copyright is made, there could very well be an issue.

It's worth pointing out, however, that this is not entirely a theoretical issue. Six years ago, we wrote about a tattoo artist suing the NBA, because a professional basketball player he had tattooed, Rasheed Wallace, had shown off the tattoo in a TV commercial, and the artist claimed it was a violation of his copyright. That lawsuit settled out of court, however, so we don't have a legal ruling as specific (that I'm aware of... but if there are other such cases, I'd love to know about them!).


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    Robert Ring (profile), Apr 12th, 2011 @ 6:05am

    I was actually thinking about this recently from another angle. What if someone got a tattoo of someone else's intellectual property (say, Mickey Mouse)? Would the owner of that IP have any legal grounds to say that the tattooed individual can't allow that tattoo to be displayed in certain situations? What if the tattooee was getting paid to, say, show off their tattoos? Would Disney in this case have any claim on that money?

    I'm certainly no legal expert, so there may be clear and obvious answers to my questions. Just something I was thinking about.

     

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      Rabbit80, Apr 12th, 2011 @ 6:49am

      Re:

      Or - who would be responsible for the copyright infringement in the first place? The tattoo artist or the individual wearing the tattoo?

       

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        Andrew F (profile), Apr 12th, 2011 @ 11:22am

        Re: Re:

        The artist would be liable, although the individual could also be liable for "inducing" the artist to create the infringing tattoo in the first place.

        Also, courts do have to the power to order the "impoundment" and "destruction" of the tattoo, so long as the court thinks it's "reasonable" to do so.

         

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        Anonymous Coward, Apr 12th, 2011 @ 11:39am

        Re: Re:

        The tattoo artist or the individual wearing the tattoo?

        Both. It was a conspiracy.

         

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      Shawn (profile), Apr 12th, 2011 @ 7:51am

      Re:

      I am sure artists being human will react differently depending on their own beliefs. I had a piece of art created by N8 Van Dyke done a few years back. I sent him a picture of the tattoo and told him the truth.. the drawing appealed to me so strongly I had it permanently inked into my body ;) He was thrilled and actually sent me a large autographed lithograph of the piece.

       

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      Pickle Monger (profile), Apr 12th, 2011 @ 8:44am

      Re:

      William H. Macy in "Wild Hogs":

      I know, it's trademarked, but what are they gonna say... It's in my skin, bitch!

       

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    Valkor (profile), Apr 12th, 2011 @ 6:30am

    Work made for hire

    I don't know the details of what makes a work a work for hire, but I know there is such a thing. This seems like the most obvious, common sense solution. The person who hired the artist and received the tattoo should the tattoo and all rights to it.

    Tattoo artists should want it that way. If they don't, they'd be liable every time someone got a sport team tattooed on them.

     

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      Sean T Henry (profile), Apr 12th, 2011 @ 6:58am

      Re: Work made for hire

      That was the point I was going to make it is a work for hire. There was no incentive to create the work if they were not specifically asked to create it and place it on the body of the individual who is paying them.

      Its like a car company going to a graphic designer and asking them to design the look for a car bases off of X and will be paid Y. Who owns the work? The person who had it created for them as a work for hire.

       

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      Zeal, Apr 12th, 2011 @ 7:54am

      Re: Work made for hire

      That works until the tattoo artist puts the same image on someone else. Would the first customer have a claim to say you can't use that art anywhere else?

       

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        Christopher (profile), Apr 12th, 2011 @ 9:09am

        Ummm, no.

        You hire me to ink Batman in a sailor outfit on your bicep. At SXSW someone sees it and a month later, wander into my shop and says "Ink me some Sailor Batman". I do so.

        You hire me to write a sorting routine. I take mergesort and tailor it, and it works. I roll off contract and get hired at another place writing a sort routine. I take mergesort and tailor it, and it works.

        What's the difference here? Is there any? Should there be?

        -C

         

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      Anonymous Coward, Apr 12th, 2011 @ 10:24am

      Re: Work made for hire

      If there's a written agreement, it *might* be a work made for hire.

      If not, it's not (unless the tatoo artist is employed by the customer, which would be a really rare case).

       

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      Anonymous Coward, Apr 12th, 2011 @ 11:41am

      Re: Work made for hire

      I don't know the details of what makes a work a work for hire, but I know there is such a thing.

      To qualify as a work-for-hire, I there usually needs to be a contract. That contract can then specify who gets the copyright.

       

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    Anonymous Coward, Apr 12th, 2011 @ 6:39am

    The act of creating the tattoo is effectively a "work for hire", aka a contract between the person and the tattoo artist creating the work on the person. The artist is thus only an agent for the person being tattooed and should be immune to liability over the issue.

    Now if the underlying image is covered under copyright I would say there is a great fair use argument because nothing is more personal and normally non-commercial then a tattoo. Even if the person becomes a public figure, a tattoo of mickey mouse on his ass would still be semi private and of little overall issue.

    A few other points:
    For copyright to be created the work must be created in a "fixed" medium, the human body is not a "fixed" medium, it changes, alters the work over time, and will decay at some point.
    An intentional public tattoo on a public figure may be a legal gray area in this. For example mickey mouse on someones forehead.

     

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      Anonymous Coward, Apr 12th, 2011 @ 7:26am

      Re:

      An intentional public tattoo on a public figure may be a legal gray area in this.

      Hm. How about this?

      http://consumerist.com/2011/04/ecko-is-totally-100-serious-about-the-discounts-for-tattoos- deal.html

      Louie Vitton is notoriously sue-happy:

      http://consumerist.com/2011/01/louis-vuitton-tattoo-sleeve-takes-brand-loyalty-too-far .html

       

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      Scote, Apr 12th, 2011 @ 8:14am

      Not work for hire

      "identicon Anonymous Coward, Apr 12th, 2011 @ 6:39am
      The act of creating the tattoo is effectively a "work for hire", aka a contract between the person and the tattoo artist creating the work on the person. "


      Many people are mislead by the term "work for hire." The term makes it sound as if the copyright to any work you commission will belong to you--it doesn't. "Work for hire" applies to **employees** only, not to independent businesses like a tattoo parlor. If you want to own the copyright to the work of an independent business you'll need to have the rights assigned to you in writing.

      Walmart discovered the work for hire issue the hard way. They fired the video company who recorded their internal and shareholders meetings. They didn't have a written contract concerning the copyright. Turns out, the copyright is owned by the company who made the recordings. Not work for hire. The work for hire applied to employees of the video company. Their copyright was owned by the video company, but the work for hire claim ends there. Walmart doesn't get a second bite at the work for hire apple--it isn't an infinite chain. Anyway, the video company had to find a way to make money after loosing Walmart as its primary customer. They did so by selling access to the videos they made for Walmart. Walmart sued and lost.

       

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        Anonymous Coward, Apr 12th, 2011 @ 10:27am

        Re: Not work for hire

        The work made for hire doctrine does not only apply to employees.

        It also applies to independent contractors if (a) there is a written work made for hire agreement, and (b) the work falls into one (or more) of 9 statutorily specified categories.

         

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          Andrew F (profile), Apr 12th, 2011 @ 11:26am

          Re: Re: Not work for hire

          The 9 exceptions are (1) a contribution to a collective work, (2) a part of a motion picture or other audiovisual work, (3) a translation, (4) a supplementary work, (5) a compilation, (6) an instructional text, (7) a test, (8) answer material for a test, (9) an atlas;

          So ... maybe a tattoo is a contribution to a collective work? It doesn't fall neatly into any of these categories I think.

           

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            Anonymous Coward, Apr 12th, 2011 @ 11:49am

            Re: Re: Re: Not work for hire

            I agree. Thus, tatoos are probably not works made for hire (I could see an argument that an addition to a full tattoo sleeve would be a contribution to a collective work, maybe).

             

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            Anonymous Coward, Apr 12th, 2011 @ 2:14pm

            Re: Re: Re: Not work for hire

            A tattoo isn't a supplementary work? It's definitely not the original intent of the "body" of work. It's an after thought (years, if not decades after the original creation of "the body" of work)and if multiple tattoos are on included how could this not be a collective work as well?

             

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          Scote, Apr 12th, 2011 @ 12:11pm

          Re: Re: Not work for hire

          Thanks for the additional details.

          As to "independent contractors," a tattoo artist may or may not be an *independent* contractor. He or she may be an employee of the business a you contract to give you a tattoo, so, again, "work for hire" likely doesn't apply.

           

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      Anonymous Coward, Apr 12th, 2011 @ 10:25am

      Re:

      "The act of creating the tattoo is effectively a "work for hire""

      Not under the law, unless there's a written agreement saying so. Even then, it's questionable.

      As for liability, being an agent doesn't necessarily immunize you from liability, and it doesn't in this case.

      As for a fixed medium, good luck on that argument. Paper decays too, but it's a fixed medium.

       

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        Anonymous Coward, Apr 12th, 2011 @ 10:26am

        Re: Re:

        Actually, it needs to be fixed in a tangible medium. A body is tangible. Temporary fixation is fixation for these purposes as well.

         

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      Anonymous Coward, Apr 13th, 2011 @ 8:50am

      Response to: Anonymous Coward on Apr 12th, 2011 @ 6:39am

      Don't tattoo artists draw a tattoo first?

      I could pick something off the wall of a shop, drawn by the artist. Now my fleshy replica is a copy of a work that has copy right.

      The copy was work for hire, but not the originol artistic creation.

       

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      btr1701 (profile), Apr 14th, 2011 @ 9:46am

      Re:

      > the human body is not a "fixed" medium, it
      > changes, alters the work over time, and will
      > decay at some point.

      If that's the standard, then a lot of copyrighted works wouldn't make it.

      Audio and video tape changes, alters and decays at some point. Even DVDs and CDs deteriorate. As do vinyl records. And as you can see from the Sphinx, even statues made of granite will change and erode over time.

       

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    MrWilson, Apr 12th, 2011 @ 6:41am

    While the human body is a fixed medium, it seems obligatory that either the tattoo is a work for hire or the artist necessarily is agreeing to a perpetual license for the use and display of the work. Otherwise you're treading on civil rights issues of free expression. You can't exactly issue a takedown notice on a body. Tattoo artists must know the nature of their work and charge accordingly if they're concerned about losing control of their works.

     

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      Michael, Apr 12th, 2011 @ 6:49am

      Re:

      "You can't exactly issue a takedown notice on a body"

      Why not? To comply, you would need only prevent access to the work (putting on a shirt?).

      In fact, this would be great as it would be nice to have a way to tell some of the people that shouldn't be shirtless that they can't be.

       

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        Bengie, Apr 12th, 2011 @ 9:07am

        Re: Re:

        Being shirtless is just as much a right as wearing a shirt.

        With your thinking, you could sell as shirt with a logo and tell someone you don't like how the shirt fits their body because they're fat, then require them to remove the shirt.

         

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      Squirrel Brains (profile), Apr 12th, 2011 @ 7:16am

      Re:

      Unless it is an odd situation, there probably is a good fair use argument in any event. Though, it would be interesting for a celebrity to get a tattoo from a tattoo artist that they know will not consent to a transmission of the art and use it to stop the paparazzi.

       

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      Anonymous Coward, Apr 12th, 2011 @ 10:29am

      Re:

      "the artist necessarily is agreeing to a perpetual license for the use and display of the work"

      I think this is a good argument.

      It gets complicated if neither party owns the copyright int he underlying work, though (e.g., a tatoo of mickey mouse).

       

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    NullOp, Apr 12th, 2011 @ 6:41am

    IP, CR...

    All copyright are belong to me!

     

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    Michael, Apr 12th, 2011 @ 6:43am

    Answer

    I think the only possibly answers to this question is either the record company - if one is involved with either the artist, the person getting the tattoo, or the actual subject of the tattoo itself.

    If no record company can be found, the copyright defaults to Disney.

     

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    Bobby Magee, Apr 12th, 2011 @ 6:53am

    Tattoo

    Usually the client comes up with a design and the Tattoo artist fleshes(haha)it out to match the persons body where it is going to be. You are just paying an artist to paint your idea onto you. It is yours.

    As for people that just stroll into a shop and pick a tattoo from a book of tattoo's. Those are like postage stamps, no creativity and no meaning in them, in my opinion.

     

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      FenixBrood, Apr 12th, 2011 @ 10:01am

      Re: Tattoo

      "You are just paying an artist to paint your idea onto you. It is yours."

      IYou get copyright when its gets written down. If i say "i want a house on my body", then the one that designes the house have the copyright on it.

       

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    John Doe, Apr 12th, 2011 @ 6:54am

    Tattoo artists need copyright or they will quit the profession

    Don't you know that tattoo artists rely heavily on copyright? Without it, they would have no incentive to create tattoos. No amount of greenbacks would be incentive enough. Nay I say, it is quite possible that with enough copyright protection, getting a tattoo would be free as the artist could make a living off royalties. In fact, the descendants could make money as long as the customers live. So the copyright would last as long as the tattoo does.

     

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      MrWilson, Apr 12th, 2011 @ 10:06am

      Re: Tattoo artists need copyright or they will quit the profession

      And if the tattooed medium, er...person dies prematurely, the tattoo artist can sue the estate for breach of contract over the loss of revenue.

       

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    ReallyEvilCanine (profile), Apr 12th, 2011 @ 6:55am

    "Work for hire"

    I was mulling over all the funny or stupid or silly comments to make about this (and I wish it was me who brought this beeeeee-yoooo-tiful example up), but that's it. "Work for hire"

     

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      Anonymous Coward, Apr 12th, 2011 @ 10:31am

      Re: "Work for hire"

      Not without a written contract (and even then it's questionable).

       

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      Anonymous Coward, Apr 12th, 2011 @ 11:49am

      Re: "Work for hire"

      I was mulling over all the funny or stupid or silly comments to make about this (and I wish it was me who brought this beeeeee-yoooo-tiful example up), but that's it. "Work for hire"

      Except, tattoos don't usually meet the legal requirements of a "work for hire".

       

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    coldbrew, Apr 12th, 2011 @ 7:02am

    Um, my mom owns all patents on all tatoos. She's pretty cool though, just give her chocolate and she will grant you rights pretty quickly.

     

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    Brian, Apr 12th, 2011 @ 7:02am

    re:copyright of tattoos

    Why is techdirt trying to give the USG ideas? Heheh, anyhow. I'd say once its on your body tough noogies to the world. And if anyone were to ever demand take down of your art;in the court of law or otherwise, that would be the time to start shooting people.

     

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    Shon Gale (profile), Apr 12th, 2011 @ 7:02am

    It is and always will be a 'Work for Hire' You get paid to do your work. Period. Unless you sign a contract that spells out the terms differently, you drew the picture, took the money, so say Goodnight Gracie. The Tatoo Artist may copyright the original drawing and tell the client that no one else is allowed to make a copy from the client, because of the copyright. It works the same in Software Development. Music for Hire and any other craft that demands creativity.

     

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    Jimr (profile), Apr 12th, 2011 @ 7:05am

    "Work for hire"

    I see it as just "Work for hire".

     

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    Squirrel Brains (profile), Apr 12th, 2011 @ 7:13am

    Probably not a work for hire

    Unless there is a employer-employee relationship, there needs to be a "written instrument" to make a work for hire and only certain types of work are eligible to be works for hire. So, for it to be a work for hire, you need to sign a contract with the tattoo artist that specifies that the tattoo is a work for hire.

    http://www.copyright.gov/circs/circ09.pdf

     

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    AndyD273 (profile), Apr 12th, 2011 @ 7:17am

    Business idea

    So what I need to do is start giving away tattoos for free, maybe even pay money if the tattoo is in a visible area. Keep record of each tattoo and who got it, and then wait for one of them to get famous.

    When one of them becomes a rockstar and is showing off my tattoo on the cover of rolling stone, I'll be in the money!

    It's only work for hire if they give you money :D
    And you would be even better off if there was some fine print in the liability waiver saying that I retain the rights to all my work.

     

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    Greg G (profile), Apr 12th, 2011 @ 7:18am

    Luke Skywalker, Obi-Won Kenobi, the Jawa's or the Tusken Raiders own all copyright to tattoo's. They are from Tatooine, after all.

    I personally think it's the Jawa's.

    Ok ok, I know, Tattoo has a double T, Tatooine doesn't. The tattoo artists are just trying to avoid a lawsuit by spelling it differently.

     

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    icepick314, Apr 12th, 2011 @ 7:20am

    Shaq

    this is only thing that comes up in my mind because he's the only basketball player with a VERY recognizable tattoo...

    Shaquille O'Neal has prominent "S" tattoo from Superman which I see everytime he's shown playing on TV...

    unless he made deal with DC comics before, no broadcast network is allowed to capture him on camera with that tattoo...

     

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    samoanbiscuit, Apr 12th, 2011 @ 7:20am

    From Another Angle

    In polynesian countries, an emerging problem is the appropriation of culturally significant tattoos (traditionally, tattoos are used to signify status and lineage, and generally incorporate themes and symbology unique to one's own culture and family) by outsiders, either other pacific islanders from other traditions, or most commonly, by white people and other westerners looking for the next cool fad. Such examples are the samoan pe'a and malu, for men and women respectively, and the maori Ta Moko, which has experienced rather more appropriation, being practiced in a large industrialized country like New Zealand.

    What rights would a clan/tribe/family unit have regarding an outsider copying and using their tattoo patterns in their own bastardized tattoos.

    Interesting Fact: The english word 'tattoo' comes from the polynesian word 'tatau', and describes both the percussion of the bone needles striking skin/etc etc (old british usage), and the ink marking left behind when the process is finished.

     

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      Squirrel Brains (profile), Apr 12th, 2011 @ 7:26am

      Re: From Another Angle

      They would have no rights in this regard. The design would likely be considered public domain. However offensive they might find it, they would not be able to stop another person's expressive choice to wear those tattoos.

       

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        samoanbiscuit (profile), Apr 12th, 2011 @ 7:32am

        Re: Re: From Another Angle

        Why would this be considered public domain? The families/clans/tribes would have a communal right to the patterns, just as they have communal ownership of their tribal lands.

         

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          Howard the Duck, Apr 12th, 2011 @ 7:56am

          Re: Re: Re: From Another Angle

          Sounds more like a trademark issue for the Polynesians. They should trademark "tatau" and sue all the bastards for dilution. They should have copyrighted ocean maps early on.

           

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            samoanbiscuit (profile), Apr 12th, 2011 @ 8:38am

            Re: Re: Re: Re: From Another Angle

            This has been done before with regards to words. Lego made a series called Bionicle, where they butchered a whole shitload of polynesian words. So some maori council sued them, and got them to stop making bionicle (something like that, details elude me)...

             

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            Squirrel Brains (profile), Apr 12th, 2011 @ 9:17am

            Re: Re: Re: Re: From Another Angle

            Trademark does not seems to fit either. Trademarks identify the source of a good in commerce and help protect the reputation of the maker of those goods. I am not what could be considered a good in this case.

             

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              Anonymous Coward, Apr 12th, 2011 @ 11:53am

              Re: Re: Re: Re: Re: From Another Angle

              There are certification marks and collective marks that are intended to show that work is done by a member of an association, for example, but that doesn't really fit well either.

              This seems like the kind of thing New Zealand or other plolynesian countries might be interested in designing some special type of protection for.

               

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          Squirrel Brains (profile), Apr 12th, 2011 @ 9:22am

          Re: Re: Re: From Another Angle

          Communal rights might be recognized in a copyright system based on moral rights. However, those rights would probably not be recognized in a copyright system based on the utilitarian concept of progress.

          I am not convinced that they should be recognized, though I am open to hearing more arguments for their recognition. To stop someone from wearing a certain tattoo would suppress their freedom of expression. There are different tools other than using the power of the government to restrict those forms of expression that you might find offensive (shaming, social norms and mores, etc).

           

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            samoanbiscuit (profile), Apr 12th, 2011 @ 9:51am

            Re: Re: Re: Re: From Another Angle

            Well, as I understand it, creative works such as the arts or sciences should be shared, for the common good, and the betterment of humanity, etc, etc. But these are not art as a public good, but a private piece of prestige and recognition. They do not contribute to progress, they are a piece of identity.
            While this does not mean they should be protected, I think it supports why they should not be shared as other's classes of creative works are. Also, because they are signifiers of identitiy, maybe the display of them by individuals outside the group/tribe/clan could be seen as fraud, as they are not authentically what the tattoos are proclaiming they are.

             

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          Anonymous Coward, Apr 12th, 2011 @ 10:39am

          Re: Re: Re: From Another Angle

          Hard to give a good answer since this inherently deals with laws of different nations, but most countries' law says that copyright in creative works expires at some point, and the works then become "public domain."

          Arguably, if the markings are intended to signify some association (family/clan/etc) you could make a trademark type argument, but that law is generally reserved for commercial use.

           

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    Jeff, Apr 12th, 2011 @ 7:28am

    I seem to remember a promotional gimmick where a taco stand would give free tacos for life if you get a tattoo of their logo.

    Taken to an extreme if a person were to turn himself into a walking billboard who would competing establishments go after?

     

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    fogbugzd (profile), Apr 12th, 2011 @ 7:32am

    What if a second person gets the same tattoo?

    I generally agree with the solution lying somewhere in the work for hire or implied license for the tattoo itself.

    However, the artwork in the tattoo may be a different issue. Some tattoo artists are in fact artists. If the tattoo artist creates a truly original piece, wouldn't they have some claim to against other artists using that same same image on other clients? Most tattoos are derivative work and that would likely be an interesting issue in the case.

    Copyright could be an issue if the artist had copyrighted images in its sample books or wall displays. However, someone getting a tattoo would probably be able to make a fair use claim, at least in the US. Tattoos could almost certainly be interpreted as a matter of personal expression and could possibly make a First Amendment claim.

    Trademark shouldn't be an issue. If someone gets "Pepsi" tattooed on his body it is unlikely people would think he was a product of Pepsico, and he would not be using it in trade. A moron in a hurry would probably recognize it as a personal tattoo. In that case, however, the person getting the tattoo would be the moron, and they are probably in a hurry because of the combined effect of sugar and caffeine consumption.

     

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    Anonymous Coward, Apr 12th, 2011 @ 7:47am

    This isn't as complicated as all make it out to be... Same rules apply as any other...

    The tattoo artist, even on consignment, owns the copyright to his creation. Both on the original paper, and the client's flesh. He who creates (and records as thought is not copyrightable) OWNS.

    Now, that ownership can be transferred, but if the client doesn't seek this route, the artist owns that design.

     

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    johnny canada, Apr 12th, 2011 @ 8:02am

    Some Tattoos are covered by copyright.

    They are created by the artist not for any client in particular and published / sold.

    Other tats that are one off created for each client is work for hire. Before they start the tat you sign a release that gives them right to publish the artwork (they take a picture of the tat to add to their portfolio and use for their own purposes ... i.e. use online on their webpage)

    (I am not a lawyer (thank GOD) but do have tats)

     

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      Anonymous Coward, Apr 12th, 2011 @ 11:56am

      Re:

      (I am not a lawyer (thank GOD) but do have tats)

      Heh, I've got news for you, like it or not, you probably DON'T own the copyrights to your tattoos (although I can see why you would like to believe otherwise).

       

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    johnny canada, Apr 12th, 2011 @ 8:04am

    Also most good tattoo artist will not do a 'Mickey Mouse' tattoo as it is covered by copyright.

    They do respect the IP law.

     

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      Anonymous Coward, Apr 12th, 2011 @ 8:21am

      Re:

      Then why have I see so many cartoon characters on people's skin?

       

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        Anonymous Coward, Apr 12th, 2011 @ 11:58am

        Re: Re:

        Then why have I see so many cartoon characters on people's skin?

        You missed the "wiggle clause": he said "good" artists. Those were obviously done by "bad" artists.

         

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    m, Apr 12th, 2011 @ 8:10am

    Bullshit

    Tattoo artists give up any right to any say over their work once they put it on someone. It's theirs (the tattoo'd person) to keep. It is literally PART OF THEM. They can't be expected to cover it up because the artist is a greedy dick!

     

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    Bill (profile), Apr 12th, 2011 @ 8:41am

    Tattoo Artists Association of America (T.A.A.A.)

    I represent the Tattoo Artists Association of America (T.A.A.A.). We are starting a licensing program to support the starving tattoo artists that work day and night to perfect their art. A small portion of the licensing fee will also go to assist the farmers who grow the plants that go in to making the dye that is used in tattoo ink.

    Please reply with your contact info so we may send you a bill for services rendered.

     

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    Anonymous Coward, Apr 12th, 2011 @ 8:50am

    Work for hire is being used in the generic lay person sense, aka I hired you to tattoo me.

    Contracts can be implicit in situations like this, and the court would ask the simple question, is the tattoo artist more like a tool or more like an artist in the given situation.

    If the customer is asking for a tattoo then the artist is simply the tool, no new creative work is being made, his job is to transfer the graphic to a new medium (aka format shifting). While he may make some "artistic" choices, they alone don't change the fact that hes doing the work.

    Original artwork, contained in a non-fleshy medium, is a different situation, even when the tattoo artist is the original artist in law they are 2 different entity's. (the tattoo artist and the original artist).

    While not a true "work for hire" situation, you could easily treat it as such to lay people, a court would more likely call it a commissioned art work where is would be implied that the receiver owns any and all rights to the work including the right to alter, destroy, or have the work associated with the receiver of the tattoo.

    Also, each case of the art work would be unique even if it was the same graphic since the canvas and the commissioned nature of the work give ownership to the tattooed.

     

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      Anonymous Coward, Apr 12th, 2011 @ 10:44am

      Re:

      "a court would more likely call it a commissioned art work where is would be implied that the receiver owns any and all rights to the work including the right to alter, destroy, or have the work associated with the receiver of the tattoo. "

      Except that an assignment of copyright must be in writing, and cannot be implied.

       

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      Anonymous Coward, Apr 12th, 2011 @ 12:02pm

      Re:

      Work for hire is being used in the generic lay person sense, aka I hired you to tattoo me.

      The legal meaning is what counts in court.

       

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    Anonymous Coward, Apr 12th, 2011 @ 9:10am

    A work for hire under US law must meet three criteria in the case of original works of authorship that are not created by employees, i.e., they are independent contractors.

    These are:

    The work must have been specially orderd or commissioned,

    The work must fall with one or more of several distinct categories listed in the statute, AND

    The parties must have agreed in writing that the work would be deemed a work for hire.

    If any of these conditions are not met, then unless the parties have executed a formal assignment of copyright to the work from the author to the "tattoo-e", the copyright remains with the author.

    Of course, even though the author may retain full rights to the work, a license agreement may nevertheless result either by the parties having executed such an agreement or by operation of law given the particular circumstances involved. Since it is unlikely that the person receiving the tattoo will be copying, preparing derivatives, publicly performing, or distributing the tattoo, the only remaining right is the one associated with "public display".

    It is difficult to conceive that the ordinary wearing of a tattoo could be viewed as a "public display" in the sense that the term in used in the copyright law, it may prove to be an entirely different matter when the display is associated with situation as noted above concerning an NBA player.

    The above having been said, do bear in mind that to the extent the tattoo artist and the person receiving the tattoo collaborate on its design such they are deemed to be co-authors, they in that situation as a co-author the person bearing the tattoo is pretty well free to do as he or she well pleases. This is a basic aspect of joint ownership that results from being co-authors...assuming no contract has been signed limiting the respective "default" rights of each author.

     

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    TRX Tattoos, Apr 12th, 2011 @ 9:44am

    if it isn't advertising...

    i own a bunch of tattoo shops. disney sued a number of florida shops a few years back. the decision was that you can tattoo anything you want on a person (in relation to copyright and trademark) but you may not advertised it. the copyright extends to the walls of the shop but not the skin. so i may not display a sheet of flash with bugs bunny on it but if you bring a picture of him in, i may tattoo it on you.

    a few of the things we tattoo are predrawn by us or someone else. a few of them are whatever you bring in. the VAST majority of what we do we draw on the spot, as per the clients instructions. this is not the case in every studio. the ratios vary dramatically from place to place and artist to artist.

    our flash sheets (the artwork on the 11" x 14" paper on the wall) are under copyright from either the artist or distributors but once purchased we have the right to display them in the store or use them for tattoos or to advertise our tattoos indefinitely. ...not to copy and re-sell them.

     

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      Anonymous Coward, Apr 12th, 2011 @ 10:46am

      Re: if it isn't advertising...

      "the decision was that you can tattoo anything you want on a person (in relation to copyright and trademark) but you may not advertised it."

      Do you have a link to this decision? I have a hard time believing that's an accurate representation (as it has no basis in law).

       

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        Scote, Apr 12th, 2011 @ 1:10pm

        Re: Re: if it isn't advertising...

        "the decision was that you can tattoo anything you want on a person (in relation to copyright and trademark) but you may not advertised it."

        Likely that is just the line past which Disney is **likely** to sue, not an actual legal exception or explicit agreement on the part of Disney--one of those, "If we never see it we probably won't sue you" sort of deals.

         

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    dave blevins (profile), Apr 12th, 2011 @ 10:47am

    Death of tatooing

    Looks like the only out is to make tattoos out of indivisible ink and free.

     

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    Andrew F (profile), Apr 12th, 2011 @ 11:31am

    Fair Use

    I think this is where the fuzziness of the fair use doctrine might come in handy. Courts will probably not want to issue an injunction telling someone they have to have a tattoo removed. They should create a rule where the "purpose and character" of the use is to display it, and the "nature of the copyrighted work" makes it difficult to remove or not display, then fair use kicks in.

     

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      Anonymous Coward, Apr 12th, 2011 @ 12:06pm

      Re: Fair Use

      Courts will probably not want to issue an injunction telling someone they have to have a tattoo removed.

      I could easily imagine one telling someone to keep it covered in public, though, and prohibiting copies to be made.

       

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        Andrew F (profile), Apr 12th, 2011 @ 2:27pm

        Re: Re: Fair Use

        That could also be tricky. You don't want to tell people that you can't take off your shirt at the beach.

         

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          Anonymous Coward, Apr 12th, 2011 @ 3:31pm

          Re: Re: Re: Fair Use

          That could also be tricky. You don't want to tell people that you can't take off your shirt at the beach.

          Trick? How so? A judge would just say that if you wanted to take your shirt off at the beach, you shouldn't have gotten the tattoo. End of story.

           

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            Andrew F (profile), Apr 12th, 2011 @ 4:28pm

            Re: Re: Re: Re: Fair Use

            People get tattoos because they want to show them off. It seems unreasonable enough that a judge will want to avoid making that ruling.

             

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            Any Mouse (profile), Apr 13th, 2011 @ 4:55am

            Re: Re: Re: Re: Fair Use

            I somehow doubt they could ever make that stick, and you can't force surgery on someone not deemed incompetent.

             

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    Elayne Angel, Apr 12th, 2011 @ 12:06pm

    Trademarked Tattoo

    My angel wings back piece is the first body art to be registered by the US Patent and Trademark Office. It is service-marked in relation to my profession, for which I am well known: body piercing services. My client/attorney (who suggested we seek Registration) was able to satisfactorily demonstrate that I am sufficiently well known in the body art community to warrant legal protection of my artwork.
    He even advised me to get the indicia of registration (the encircled "R") added onto my body to increase my legal protections. I now bear that mark at the bottom of the tattoo.
    When a piercer I am not affiliated with made a TV commercial standing in front of the large poster of my tattoo, I was able to quickly put a stop to that thanks to my USPTO registration.
    Elayne Angel, Author The Piercing Bible--The Definitive Guide to Safe Body Piercing (Random House, 2009)

     

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    Andres (profile), Apr 12th, 2011 @ 1:30pm

    There is an excellent article from Jordan Hatcher dealing with this very issue:

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=815116

     

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    Huph, Apr 12th, 2011 @ 1:31pm

    As I understand it, and this is just from memory, film and TV studios do have actors cover potentially infringing tattoos. And I'm fairly sure I've heard about Disney getting huffy over visible tattoos in a porno.

     

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    david, Apr 14th, 2011 @ 8:21pm

    tester f

     

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    Jen, Apr 14th, 2011 @ 8:24pm

    Maybe it's time to consider tattoo removal options? If your in SoCal, check out www.tat2begone.com for tattoo removal offices in Orange County and Riverside County (clost 2 Los Angeles County too!). They typically have the best rates, most experience, and are great people.

     

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    terrybbarton (profile), May 26th, 2011 @ 10:56am

    I am no lawyer but this doesn't seem too complicated to me.

    Would it not be like someone who hires a clothing designer to make a suit or a dress or a painter to paint on canvas or any other work that a person then carries with them in public or anywhere they may go. It would seem to me that since the tattoo on film would be like a painting shown within a movie or a designer dress worn by an actress in a movie and not in any imaginable way a sales competition to the original artist's related works that it must be fair use.

    I would also think that normally tattoos would be considered a work for hire except in cases such as this one where Copyright/IP is agreed to. Doesn't copyright simply prevent someone from making unauthorized, derivative, competitive, works that are not modified to an extent that they could be considered as fair use? I can't see how this could be anything but fair use since it is in no way competitive. I also believe that it would be impossible for anyone to believe the artist has suffered any lost sale of the work or derivatives. Copyright infringement irrelevant but no less the case the additional exposure of the artist's work would almost certainly have a promotional sales effect.

    I can't see how a movie could possibly be considered as infringement on any legally licensed copy of any copyright/IP product unless the movie was two hours of nothing but displaying that item.

     

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    yeanbell101, May 31st, 2012 @ 11:36am

    There are a lot of reasons for possibly wanting a tattoo removed the positive element of tattoo removal is that you are no longer burdened with a tattoo you seriously regret. If a tattoo is holding you back from getting a job you want or keeps you from attaining goals you have set for yourself, a little pain and scarring may be worth it to you. If you have a gang-related tattoo and are no longer associating yourself with that gang or any gang (good for you!), it would be in your best interests to have it removed. If you have a tattoo that symbolizes hate or prejudice, I hope that you will decide that it is time to let it go. If you are wearing a tattoo of a past love and now you have a new special person in your life, it would be unkind to your new love NOT to get rid of the old tattoo.

     

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    cerenatee, Dec 22nd, 2012 @ 9:41am

    Just Saw Court Case

    I just saw a tv court case with this very issue. The client had paid for an original design, got the design tattooed on her, and was selling the design on t-shirts. The artist wanted a part of the t-shirt proceeds. The judge said the $300 the client paid for the original design made it hers. The artist couldn't collect any more money.

     

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    Nexttime, Jan 7th, 2013 @ 4:39pm

    tattoo copyright

    Actually really curious about this exact subject. I am a tattoo artist and one of my tattoos has been one of the most popular designs for the past 3 years. "Tattoo Johnny" even sells my design it is so popular. I can prove that the internet is my design. All I am really wanting is recognition as the artist who created this design.

     

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    V Hamilton, May 13th, 2013 @ 5:28pm

    tattoos

    We appear to be like minded people. please link with my site and I did enjoy your content.

     

    reply to this | link to this | view in chronology ]


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