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Tattoo Copyright: What You Need To Know

Tattoo Copyright: What You Need To Know

Guides8 min Read

Summary

Who owns your tattoo? You may be surprised. Read along to explore tattoo copyright lawsuits, arguments for tattoo ownership, and best practices.

Your tattoo is finally finished and you couldn’t be happier with the results! You’ve paid your artist and now you’re ready to show off your new piece to the rest of the world. But do you actually OWN your tattoo? According to the Copyright Alliance and the requirements surrounding copyrighted imagery, the answer may be a resounding no!

Van Gogh tattoo by Hakan Adik #HakanAdik #VanGogh

For example, if you select an artist who is known for crafting custom one-off tattoos, and you decide to get an original piece from them, this tattoo would be considered the artist’s intellectual property in the eyes of the law. Now, this doesn’t mean that you can’t take photographs of your new tattoo, or show it off, but if your custom tattoo is used in a commercial sense, or is tied to any promotional material, then there could be grounds for a lawsuit where the artist would most likely win.

To determine whether or not your tattoo is covered by copyright it must be shown to meet certain criteria. For a tattoo to be protected under copyright it must be original to the artist and it must be shown to possess at least a minimal amount of creativity. If you assisted your artist in the actual design and layout of your tattoo, then the tattoo is considered a collaboration, in which case both of you would “own” the rights to the piece.

Awesome example of inspiration rather than reproduction...Van Gogh inspired tattoo by Mambo Tattooer #Mambo #MamboTattooer #VanGogh

Can You Get a Tattoo of a Copyrighted Image?

While it is certainly possible to get tattoos of copyrighted images, there are some risks and objections when it comes to this practice. From Disney character tattoos to your favorite brewery’s logo, copyrighted images in the form of tattoos can create problems, so it’s important to be aware of the potential risks, particularly for artists.

From a legal standpoint, tattooing a copyrighted image upon someone’s skin could cause issues down the road, but it’s not a likely occurrence. For the copyright holder to successfully pursue a lawsuit against an artist, the copyright holder would have to prove that the use of their image by the artist has negatively impacted their business by either devaluing their work or affecting the potential market where their work is used.

Audrey Kawasaki tattoo by Paolo Morando #PaoloMorando #AudreyKawasaki

So, if you decided to get your favorite cartoon character as a piece of permanent art, there is a potential risk that the illustrator could sue the tattoo artist for “devaluing their work”. If you’re curious about how this makes for a solid legal argument, it’s because the illustrator could argue that they would like to distribute and profit from flash designs or custom imagery sold to tattoo artists and clients. If the tattoo artist is replicating the illustrator’s design themselves, it prevents the original creator from profiting off their own work, thereby devaluing it. Without asking the illustrators permission to use the copyrighted design, it is possible that they may become offended, or even pursue legal action, so it’s always best to secure permission before recreating anyone’s original work.

Brave tattoo by Michela Bottin #MichelaBottin #bravetattoo #disneytattoo

Some of you reading along may already be familiar with the occasional struggle between graphic designers, illustrators, artists, and tattooers. A popular example comes from illustrator and artist, Micah Ulrich. Ulrich is well-known for his unique occult inspired pieces which he sells online and showcases via his social media. Many lovers of Blackwork, Etching, and Woodcut style tattoos have fallen in love with Micah’s work, and have chosen to get his original designs tattooed upon their skin. Ulrich personally approaches this dilemma by asking that anyone who uses his artwork for a tattoo please purchase one of his prints, or pick up something from his online shop. To date, this approach has seemed to work well for Ulrich, providing him with cross-promotional opportunities, and garnering a wider fan base for his work. So even though it is technically copyright infringement to recreate his art in the form of tattoos, he has given his express permission and suggested an appropriate form of payment for the usage of the design.

It’s important to remember that not all artists and illustrators have this type of policy, so it’s always best to ask permission before using someone else’s original artwork within a tattoo. Chances are the original artist will be reasonable about what they expect in return, and it eliminates the opportunity for lawsuits down the line.

Micah Ulrich tattoo by kush.tats of Golden Iron Tattoos #kushtats #micahulrich

Do You Own Your Tattoo?

You “own” your tattoo in the sense that you have permanent physical possession of the design, seeing as it is displayed on your skin, but you do not own the actual rights to the design itself, and therefore cannot legally reproduce the image commercially, or use it to profiteer from in any way. Although this seems straight-forward, it can sometimes get confusing, especially for celebrities and prominent persons. 
For example, if you’re planning on showing off your new tattoo on social media, or perhaps unveiling it on the red carpet, this falls under an acceptable display of the tattoo, but if you are using the tattoos imagery to promote a product, or if you have separated the tattoo from the skin and are using it as an independent design, this would likely be deemed as copyright infringement. In cases of this nature, the defendants often settle out of court, since the law makes it pretty clear that the tattoo artist is the exclusive owner to the rights of the design.

Screenshot of tattoos in an NBA video game

An example of a case that may put this question into perspective is the lawsuit between Take Two Interactive and the tattoo licensing company Solid Ink Sketches. The legal dispute between the two arose when Take Two Interactive chose to feature Lebron James’ tattoos on his avatar within the game. Solid Ink Sketches felt that the depiction of his tattoos was copyright infringement, stating that the game developers did not need to include the tattoo as an identifying component and that the removal of the tattoo from Lebron's skin to an avatar was intellectual theft. Take Two fought back by stating that the tattoos in dispute are barely visible throughout the game, claiming its use is what is referred to as de minimis. They also asserted that the depiction of the tattoo on the avatar is what’s known as “fair use”. Many people wondered when this case broke whether Lebron had a say in any of this? And whether or not he could grant permission for the tattoo to be used commercially.

The quick and easy answer is no, a person wearing a tattoo cannot grant permission for that tattoo to be used commercially unless they designed it entirely themselves. The only person who can approve of the commercial usage of a tattoo is the artist who created it. So when you consider if you “own” your tattoo, the answer is no when it comes to commercial usage and reproduction.

Screenshot of tattoos in an NBA video game

The tattoo artist who designed the tattoo possesses full ownership of the copyright, particularly when it comes to reproducing the image in any fashion, or using it for promotional purposes.
One of the most well-known legal examples illustrating tattoo copyright laws is the case of Whitmill vs Warner Bros, also known as the Mike Tyson tattoo case. In this lawsuit, a tattoo artist by the name of S. Victor Whitmill sued Warner Bros for tattoo copyright infringement after seeing his unique design being used to promote the film “The Hangover 2”. In this particular example, Warner Bros ran into problems because they had recreated Mike Tyson’s tribal face tattoo on another character within the film.

Mike Tyson's tattoo in The Hangover

This replicated image of Mike Tyson’s tattoo was used excessively in promotional and marketing material and even displayed on the cover of the film. Tyson’s tattoo artist had registered the design previously with the US Copyright Office and had also asked for Tyson to sign an agreement stating that he would not use the tattoo for commercial endeavors. It seemed that the artist had prime grounds to sue, but unfortunately, we did not get to see a ruling in this case. Like the many other copyright tattoo cases that have come before and after, the case was settled out of court for an undisclosed sum of money.

Mike Tyson's tattoo in The Hangover

Can Tattoo Artists Copy a Drawing?

While tattoo artists can technically copy a drawing and use it for a tattoo, it’s not considered best practice legally, professionally, or creatively. Most artists will prefer to make something their own, perhaps taking inspiration from a drawing or pre-existing piece of art, but adding additional creative twists and original elements. Legally speaking, it would be considered copyright infringement to use someone else’s unaltered artwork as a tattoo, but it would be unlikely that a person would sue over this or pursue any type of legal action.

Tattoo on the right is a copy of painting by Andres on the left. Sourced from IG: tattoocopycats

Is It Okay to Get the Same Tattoo as Someone Else?

If you want the same tattoo as your favorite celebrity, it’s within your legal rights to replicate their tattoo design. While this may sound comforting initially, it’s not considered a great practice. Many reputable tattoo artists would not be willing to replicate an original piece created by another artist, as this is considered rude and unprofessional. If you want to use someone else’s tattoo as a source of inspiration, it’s acceptable as long as there are transformative changes and unique components. Making each tattoo your own is important to ensure that you don’t step on anyone’s toes, or offend anyone. Many might also argue that the tattoo feels more special to the wearer when a personal touch is added.

Original tattoo on the left and copy on the right. Sourced from IG: tattoocopycats

So if you have found a tattoo that you really love from social media and you’re looking to get an exact replica, expect to run into problems. Recreating someone else’s original work without any transformative changes is technically considered copyright infringement and artists who value creativity and craftsmanship will not entertain the notion of “stealing” someone else’s design.

It's also worth noting that, often, the tattoo artist who you choose to recreate another artists work will not do it as beautifully as the original artist. If you're a huge fan of someones work, think about contacting them directly for a tattoo, rather than appropriating their work with another artist who is probably not as skilled, or doesn't have the original artists personal style!

Original tattoo on the left and copy on the right. Sourced from IG: tattoocopycats

When it comes to tattoos and copyright laws, it becomes clear that tattoo artists own all of the rights to the designs usage. If you are an artist wondering how to copyright a tattoo design to protect yourself, you should make sure to register your designs with the US Copyright Office. This additional step has helped creators protect their intellectual property more fiercely, leaving less room for interpretation as to whether or not copyright infringement has occurred.

Beautiful example of inspiration rather than copying...Yayoi Kusama inspired tattoo by Patrick Cat Tattoo #PatrickCat #YayoiKusama #illustrative #flower #portrait #polkadots

While copyright on tattoos may seem wild to some, the law is clear that tattoos fit all of the requirements to be protected. So make sure that you use your tattoos responsibly, and always ensure that your tattoos are as original as possible. If you do plan on using an artist’s exact design, remember to ask permission first.

You can read more about the artists point of view on people copying tattoos check out the interview with Pitta Kkm.

Original tattoo on the left by Pitta Kkm and tattoo on the right by a copycat tattooist #copycattattoo #copyingtattoos #pittakkm

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