National Tattoo Day, 17 July 2020 – Part I

Who owns your tattoo? It may not be you…

Have you ever wondered whether tattoos as artistic works may be protected by copyright law in Australia?  If there is copyright in tattoos is it necessarily owned by the wearer of the tattoo or does copyright reside with the tattoo artist or even the creator of the original work?  What happens if the tattoo artist is employed at a tattoo studio, could the employer (Studio owner) own the copyright? Finally, can other people reproduce the tattoo in photographs, film or perhaps use in an advertising campaign? 

In anticipation of National Tattoo Day 2020 tomorrow, Louise Brunero from Solubility considers the question of who owns the intellectual property in your ink, as well as moral rights in tattoos and provides some tips for those who have or are considering getting tattoos, tattoo artists and tattoo studios. In Part II tomorrow, Louise will discuss the issues for people wishing to use tattoos in their films, marketing campaigns or other projects. 

Tips for those who have or are considering getting tattoos, tattoo artists and tattoo studios

• For those seeking to have their own original design applied by a tattooist, you may wish to have an agreement in writing confirming that you are the copyright owner and setting out how the tattooist can use the work, e.g. can the tattooist include photographs of the design in their portfolio or display on their website to promote their business? Can they use the design on other clients?  The best time to enter the agreement is at the time of getting the tattoo.
• The copyright in a tattoo studio’s designs are a valuable business asset.  Studios should decide whether they want to retain the copyright in their designs or whether those rights will sit with the employee tattooists.  Employment contracts should clearly address the issue of IP ownership.
• Both freelance tattooists and tattoo studios should consider their position on IP ownership when a wearer presents their own original design to be applied or where the design is created jointly by both the wearer and the tattooist.  Having a written agreement in place can prevent future disputes around ownership of the copyright in the tattoo and how each party might use it.

Part I – copyright protection and moral rights in tattoos in Australia

National Tattoo Day recognises the history, culture, and artists dedicated to etching ink permanently on the skin. Evidence of humans marking their bodies with permanent designs have existed for thousands of years. Egyptian mummies dated to c. 2,000BC reveal several forms of religious and status symbols.  While the more recent discovery of the famous “Iceman” in 1991 from the area of the Italian-Austrian border and carbon-dated at around 5,200 years old revealed tattooed dots and small crosses distributed on his lower spine, knee and ankle joint, which are thought to have been applied for therapeutic reasons to alleviate joint pain. 

Tattooing cultures vary around the world and some have changed very little over time.  Designs may be simple, or complex and original works of art but all are deeply personal.

Some key points

• In Australia the basic principles of copyright law apply to an original artistic work whether that work is on a piece of paper or on human skin.
• Where the copyright is not owned by the wearer, it may nevertheless be advisable to seek consent of the wearer in certain circumstances before exercising copyright in practice.
• If you wish to have a particular photograph or artistic work reproduced on your body as a tattoo you may need to get permission from the copyright owner of that photograph or artistic work.
• Copying or recording a person’s tattoo without permission may result in a copyright infringement. Particular care should be taken before prominently featuring a tattoo in an advertising campaign if the wearer of the tattoo is not the owner of the tattoo or you have not otherwise obtained consent of the tattoo copyright owner.

Can copyright exist in a tattoo?

The short answer is yes. 

The Copyright Act 1968 (Cth) governs copyright in Australia. Copyright is automatic and exists for 70 years after the author’s death. While Copyright does not require registration for protection to be granted, for copyright to subsist in a work it must meet each of these criteria.

• The work must be a type of work that attracts copyright, i.e. a literary, dramatic, musical or artistic work.
• The work must be recorded in a material form i.e. the work is not just an idea, it must have been recorded in a physical way such as being written down, sketched on paper, painted on a canvas.
• The work must be original i.e. it is attributable to the author’s skill and labour, and not copied.
• The work must be substantial enough to be protected.

Tattoos therefore may be protected by copyright in Australia. The fact that a tattoo is on human skin, rather than on a piece of paper, does not affect the subsistence of copyright.  The tattoo would however need to be original and substantial enough.  A tattoo of a simple shape, such as a circle, a musical symbol such as a treble clef or the word “Mum” is unlikely to be original or substantial enough to be protected.

Who owns copyright in a tattoo?

Assuming the tattoo is original and substantial enough to be protected, the question is who owns the copyright in the tattoo?  Australian copyright law treats tattoos the same as any other kind of artistic work and the same legal rules about ownership of copyright apply.  That is, as a general rule the creator of the original work is the owner of copyright in that work, with the following exceptions.

• Employers generally own copyright in copyright material created by an employee during the course of his/her employment, unless the employment contract states otherwise.
• Other contractual agreements can deal with copyright ownership or assign ownership from the creator to another person.  For an assignment to be valid, it must in writing and signed by the copyright owner.

In the case of a tattoo, the particular circumstances in which the tattoo was created will determine who owns the copyright.  Perhaps surprisingly copyright in a tattoo is more likely not to be owned by the wearer of the tattoo.  Copyright may belong to any of the following.

1. The wearer of the tattoo, e.g. where the wearer creates his/her own original design and presents it to the tattoo artist for it to be tattooed on the body.
2. The person who inked the tattoo, e.g. where a tattooist creates an original work and applies it to the wearer.
3. The tattoo studio or employer of the person who inked the tattoo, e.g. where an employee tattoo artist creates tattoo designs in the course of his/her employment as a tattooist.
4. Another person, e.g. a photographer whose photograph is reproduced in a tattoo design.  It is not enough that a photo be used merely as inspiration, it must be a reproduction of all or an important part of the photograph (such as the composition or distinctive colouring) for the photographer to be considered the copyright owner.

If more than one of the above applies, copyright in the tattoo may be owned jointly, e.g. when a person brings in their own original design and the tattoo artist also adds original and substantial elements to create a final tattoo design which is then applied to the wearer.

What rights do you have as a copyright owner?

The owner of copyright has the following exclusive rights.

• To reproduce the work, e.g. by making a hand copy, taking a photograph of the work or filming it.
• To publish the work, e.g. by publishing photographs of the work in a magazine.
• To communicate the work to the public, e.g. by posting images of the work to social media accounts or broadcasting such images.

However, where the copyright is not owned by the wearer, it may nevertheless be advisable to seek consent of the wearer in certain circumstances before exercising copyright in practice, e.g. depending on the placement or personal significance of the tattoo the wearer may not wish the tattoo to be photographed or otherwise published.

Do Moral Rights also attach to tattoos?

Moral rights are personal to the artist of a copyright work and are separate to copyright in that work.  Moral rights always remain with the artist even if the copyright is owned by someone else (such as the wearer or employer/tattoo studio owner).

Where copyright subsists in a tattoo, the tattooist as the artist would also have moral rights in respect of the tattoo. A tattooist’s moral rights are the rights:

1. to be attributed as the artist;
2. not to have someone else falsely attributed as the artist; and
3. of integrity, that is not to have the tattoo subjected to derogatory treatment (such as an act that results in a material distortion, mutilation, or alteration of a work that is prejudicial to the artist’s honour or reputation).

It is important to remember that a tattoo artist could also have a moral rights claim in addition to any copyright claim that could be brought in relation to a tattoo.

In Part II tomorrow Louise considers possible infringement issues and discusses some high-profile cases from the US and UK where ink in the mainstream has caused headaches for film producers, video game makers and big name advertisers alike.  Louise also provides some tips for people wishing to use tattoos in their films, marketing campaigns or other projects and on moral rights. 

We hope you and your ink join us then!