Tattoos & Copyright - What You Should Know
Tattoos and copyright are often a tricky subject, but here at Magnum Tattoo Supplies, we are going to try and break it down for you!
Who owns your tattoo? You may be surprised.
Your tattoo is finally complete, and you are thrilled with the results! You've paid your artist, and now it's time to show the rest of the world your new work. Do you, however, genuinely OWN your tattoo? The answer may be a resounding no, according to the standards governing copyrighted imagery.
For example, if you choose an artist who specialises in unique one-of-a-kind tattoos and decide to commission an original piece from them, the tattoo will be deemed the artist's intellectual property under 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 see if your tattoo is protected by copyright, you must show that it meets certain criteria. A tattoo must be original to the artist and exhibit at least a minimal amount of inventiveness in order to be protected under copyright. 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.
Can You Get a Tattoo of a Copyrighted Image?
While getting tattoos of copyrighted images is certainly conceivable, there are significant risks and objections to this practise. Copyrighted pictures in the form of tattoos can cause complications, ranging from Disney character tattoos to your favourite brewery's logo, so it's crucial to be aware of the hazards, especially for artists.
(Cartoon artwork from our Sponsored Artist, Jordan Baker)
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.
(Simpsons art from our Sponsored Artist, Lewis Wynnyk)
So, if you decided to get your favourite 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.
It's crucial to remember that not all artists and illustrators follow this rule, therefore it's always a good idea to get permission before tattooing someone else's original artwork. The original artist is likely to be reasonable in terms of what they demand in return, which avoids the possibility of future disputes.
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.
The short answer is no, unless the tattooed person designed it entirely themselves, a person having a tattoo cannot get authorization for it to be used commercially. The artist who produced the tattoo is the only one who can allow its commercial use. So, if you're wondering if you "own" your tattoo, the answer is no in terms of commercial use or duplication.
Who Owns the Copyright of a Tattoo?
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.
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 endeavours. 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.
Can Tattoo Artists Copy a Drawing?
While it is technically possible for a tattoo artist to replicate a drawing and utilise it for a tattoo, it is not regarded best practise legally, professionally, or creatively. Most artists like to create something unique, sometimes gaining inspiration from an existing picture or piece of art and adding their own creative twists and unique aspects.
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.
Is It Okay to Get the Same Tattoo as Someone Else?
If you want the same tattoo as your favourite 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. It's crucial to personalise each tattoo so you don't step on anyone's toes or insult them. Many people say that adding a personal touch to a tattoo makes it feel more personalised to the user.
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 mentioning that the tattoo artist you choose to imitate another artist's work is unlikely to do so as well as the original artist. Consider contacting an artist directly for a tattoo if you're a major fan of their work, rather than appropriating their work with another artist who is likely not as good or doesn't have the original artist's particular style!
When it comes to tattoos and copyright laws, it becomes clear that tattoo artists own all the rights to the design’s usage. While copyright on tattoos may appear to some to be absurd, the law makes it clear that tattoos meet all of the standards to be protected. As a result, make sure that you use your tattoos carefully and that they are as unique as possible. If you want to use a specific artist's design, make sure you get permission first.
- Caitlin Moore