Think before you ink – but it’s just a copy, right?

Tattoos and copyright

In July 2015, a YouGov poll identified that nearly one fifth of the British public had at least one tattoo. Of that 19%, 14% of the public with tattoos confirmed that they regretted at least one. Tattoos are becoming more and more popular it seems, but the laws of copyright have an effect on what designs a tattoo artist can ink on to their clients.

With an increase in the popularity of tattoos, an increase in disputes over their ownership can also be expected. Whether or not a tattoo artist tattooing the works of another artist onto their client could result in legal action will depend on the protection afforded to that specific work at the time.

Copyright lasts for different periods dependant on the type of work. Rights in relation to tattoos would fall within the category of artistic works and as such would last for the lifetime of the creator and then 70 years after the end of the calendar year of that creator’s death. For example, tattooing the works of an artist such as Vincent Van Gogh would not breach copyright, as opposed to Banksy which would be more likely to pose as problematic. In fact, back in 2014, Justin Bieber found himself causing issues and arguing that his Banksy tattoo was not a “carbon copy rip off. More subtle imagery”.

Famous tattoos

Mike Tyson’s facial tattoo was the centre of a legal dispute back in 2011, when the artist (Victor Whitmill) sued Warner Brothers for copyright infringement arising from the prominent display of the tattoo in The Hangover Part II and the film’s advertising. The artist claimed that he had drawn the tattoo, freehand, onto Tyson’s face and that there was signed paperwork where Tyson agreed that the copyright in the design vested in the artist.

However, what the artist did not (and could not) have was a right in respect of that part of Tyson’s face. The artist’s legal representation argued then that it was the parodic display of the tattoo on another character’s face which was an unauthorised copy. The case resolved, with Warner Brothers continuing to argue that in their defence the design was a parody, with a financial settlement being paid to the artist. This outcome has led to celebrities obtaining agreements to ensure that their rights are protected to prevent such future issues.

Tattoos and the general public

There is a common misconception that, as with many other works protected by copyright, upon the client paying for the tattoo the artist has inked on them, they own the work. This is not always the case.

Where a client comes in with an original design then this will likely, even once inked onto the client, remain their work and the rights would vest in the client. Alternatively, were a client to come in with an idea, rather than a design itself, then the waters appear more muddy. Essentially, without an agreement in place, the tattoo artist would be the creator of the work (despite the input of the idea from the client) and as such, the copyright would vest in the artist, even once tattooed on to the client. In circumstances which fall between these two examples, joint rights may be identified as vesting in both the client and the artist.

With this being said, formal agreements are not commonplace for tattoo studios and disputes will only likely arise where works are tattooed onto individuals with a higher profile.

Expert advice

It is always worth considering what, if any, implications may arise from any actions you are looking to take in respect of any original works. Whether that be looking to develop works without infringing the rights of the original material, or protecting your own original material from infringement by another.

If you would like further information in relation to copyright matters, whether that be protecting your own interests or ensuring you are not breaching the rights of others, our experienced Intellectual Property team would be delighted to assist.