1709 Blog: for all the copyright community

Friday, 1 April 2011

Tattoos and moral rights: a couple of points to ponder

Apologies are owed to my correspondent who wrote me the following missive, which I meant to post last week but completely overlooked. He writes:
"My colleague and I were discussing, at length, the art of tattooing (it was, after all, Friday afternoon!).

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!"
It seems to me that the potentially derogatory public display and transmission of the tattoo is only one of a number of moral rights issues that can be discussed -- another one is whether, if the tattooed subject wishes to have the tattoo amended or removed, the tattoo artist has any ground upon which to object.

Readers' thoughts on the topic are naturally welcomed.

15 comments:

Guy said...

Some years ago IPKat posted an item I supplied about one of the Suicide Girls. She had registered her tattoo with the US Copright Office and was purportedly suing tattooists who were copying it for her fans.

Anonymous said...

What if a very thin person gets a tattoo, proceeds to become very obese, and the the tattoo becomes thereby severely distorted and mutilated to the obvious prejudice of its author? Injunctive relief, damages?

Where does the balance of convenience lie?

AndyJ said...

As far as I am aware (never having had a tattoo) a tattoo artist does not sign his work (and perhaps thus implies that he is not asserting his right to be so credited). It is implicit in the transaction that the client will have both title in the work and also a licence to exhibit the work, similar to the situation where a painting is bought by a gallery. Therefore CDPA s82(2)(a) would seem to apply:
"(2)The right conferred by section 80 (right to object to derogatory treatment of work) does not apply to anything done in relation to such a work by or with the authority of the copyright owner unless the author or director—

(a)is identified at the time of the relevant act, or

(b)has previously been identified in or on published copies of the work;

and where in such a case the right does apply, it is not infringed if there is a sufficient disclaimer.
"
I think a far more pressing question arises over the Artists Resale Rights!

eenrich said...

Hi, some years ago there was a conflict between the artist that designe david beckham's tatoos and the soccer player, who intended to sell merchandising itmes without the consent of the tattoo artist.
best,
enric enrich, barcelona
www.copyrait.com

ventsi said...

I think that in the case of tattoos, the only right which the author could claim is the right of authorship of the work.
In this case, except for copyrights, we are talking about human rights, personality right, because the canvas on which the author draws is man himself.
From this perspective, I believe human rights outweigh the rights of the author over the tattoo. The author can not take advantage
from his copyrights.

copyrightgirl said...

There was also a case of a basketball star who had a tattoo where the tattoo artist sued him because he said it infringed his copyright... it's a difficult one, probably best settled by contract between the designer of the tattoo, the tattoo artist themselves (copying the artwork on to the body), and the individual being tattooed.

Mathias Klang said...

Hi,
Jordan Hatcher has written an interesting article on tattoos & copyright "Drawing in Permanent Ink: A Look at Copyright in Tattoos in the United States" its online her http://papers.ssrn.com/sol3/papers.cfm?abstract_id=815116

Mathias

MarkTwain'sGhost said...

I'd say tattoos qualify as work for hire, unless otherwise noted. I think involving creator rights would be absurd, even if another artist copied your tattoo design, since so much of tattoo culture is about re-appropriating popular culture anyway. Franky, I think the tattoo industry would be better off with a fashion industry type outlook on copyright, though I suppose there's no advantage to forced obsolescence when the ink is permanent.

Jordan Hatcher said...

Thanks Mathias for the mention! The paper is up on on SSRN and on my site at jordanhatcher.com. I also have some slides from my presentation at Gikii on the topic a few years ago up on slideshare if anyone is interested.

Hit me up via jordanhatcher.com if you want more details.

The basketball star case copyright girl mentions is Reed v Nike et al in the US District Court for Oregon (3:05-cv-00198-BR Reed v. Nike, Inc. et al) back in 2005. I have the documents from PACER if anyone wants them (though they don't say much, it settled before trial).

Will Clarkson said...

Now this Hypo has become reality. The tattoo artist who made Mike Tyson's Eye tattoo has sued Warner Brothers claiming copyright infringement.

http://www.tmz.com/2011/04/29/hangover-2-face-tattoo-ed-helms-mike-tyson-copyright-lawsuit-warner-bros-movie/

Anonymous said...

See also article in Lewis & Clark Law Review Christopher Harkins 'Tattoos and copyright infringement: celebrities, marketers and businesses beware of the ink' vol10 n2 2006

Anonymous said...

The purpose of copyright is to provide incentive to creators to create.

In the case of a tattoo artist, incentive to create comes from the payment rendered by the person getting the tattoo. No copyright is needed. Thus none should be granted. Case closed.

Anonymous said...

In the case of a tattoo artist, incentive to create comes from the same variable source as the incentive of a painter, musician, or other creator of 'work'. This may be incentive from potential payment, from fame.. and/or from enjoyment of the creative process (amongst other things).

It seems dismissive and ignorant to separate tattoo artists from any other type of creator. As such it appears only logical to me that the work of a tattoo artist is akin to that of a commissioned artist of any other type. I am talking about custom work of course, not flash (in accordance with the original post). Flash - now that would be a whole other mess of rights!

Very interesting thinking about derogatory public display/transmission. Any reputable artist requires a customer to sign forms (particularly notifying of any health conditions etc) before a tattoo is done, perhaps an artist worried about derogatory display/transmission could include a contractual term in relation to this issue? But I am not entirely convinced many tattoo artists would find the publicity of their work - particularly via modelling, as mentioned - derogatory. It has been the way in which several famous artists have become big - just look at Louis Molloy who has made his living off Beckham's back tattoo.

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Anonymous said...

Think of it this way, you buy a painting, you hang it on your wall. You pay hundreds of dollars for a tattoo, you own that piece of art and can do with it what you please.