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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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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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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Both. It was a conspiracy.
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I know, it's trademarked, but what are they gonna say... It's in my skin, bitch!
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Work made for hire
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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Re: Work made for hire
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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Re: Work made for hire
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Ummm, no.
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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Re: 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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Re: Work made for hire
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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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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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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Not work for hire
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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Re: Not work for hire
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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Re: Re: Not work for hire
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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Re: Re: Not work for hire
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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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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Response to: Anonymous Coward on Apr 12th, 2011 @ 6:39am
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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> 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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Obligitory
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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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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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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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IP, CR...
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Answer
If no record company can be found, the copyright defaults to Disney.
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Tattoo
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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Re: Tattoo
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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Tattoo artists need copyright or they will quit the profession
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Re: Tattoo artists need copyright or they will quit the profession
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"Work for hire"
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Re: "Work for hire"
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Re: "Work for hire"
Except, tattoos don't usually meet the legal requirements of a "work for hire".
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re:copyright of tattoos
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Not legally, and that's what counts.
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"Work for hire"
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Probably not a work for hire
http://www.copyright.gov/circs/circ09.pdf
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Business idea
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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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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Shaq
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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From Another Angle
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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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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Re: Re: Re: From Another Angle
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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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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Re: Re: Re: From Another Angle
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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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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What if a second person gets the same tattoo?
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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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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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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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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They do respect the IP law.
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You missed the "wiggle clause": he said "good" artists. Those were obviously done by "bad" artists.
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Bullshit
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Tattoo Artists Association of America (T.A.A.A.)
Please reply with your contact info so we may send you a bill for services rendered.
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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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Except that an assignment of copyright must be in writing, and cannot be implied.
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The legal meaning is what counts in court.
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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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if it isn't advertising...
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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Re: if it isn't advertising...
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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Re: Re: if it isn't advertising...
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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Death of tatooing
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Re: Death of tatooing
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Fair Use
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Re: Fair Use
I could easily imagine one telling someone to keep it covered in public, though, and prohibiting copies to be made.
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Re: Re: Fair Use
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Re: Re: Re: Fair Use
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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Re: Re: Re: Re: Fair Use
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Trademarked Tattoo
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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http://papers.ssrn.com/sol3/papers.cfm?abstract_id=815116
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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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Just Saw Court Case
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tattoo copyright
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tattoos
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