Copyright and tattoos: who owns your skin?
Jordan Hatcher did a fascinating presentation on copyright and tattoos at Gikii, last week's UK conference on copyright law. Hatcher explores the legal ramifications of tattoo artists who assert copyright over their works after they've been inked, objecting to the tatts being displayed in advertising -- and even seeking to prevent old tattoos from being erased! The presentation isn't online, but the slide deck is, and it's a really interesting read. PDF Link (via Oblomovka)
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"I'm sorry, I'm revoking my license on that tattoo. But don't worry, I have a scalpel..."
It sorta sounds like an artist being upset when you display their artwork at work.
But isn't getting a tattoo like commissioning a piece of artwork? Once you've paid the artist for the work you commissioned them for, do they really have any say in what goes on with it?
Clay,
Not automatically. The person who owns the copyright in a work is the person who created it. So, if you commission a software developer to create a program, the developer owns the copyright to that work by default. A wedding photographer owns the copyright to the pictures taken at your wedding. And so on...
"Work created for hire?" This is how the music industry takes away musicians' control of their recorded works. The musician retains rights to the song, but the recording belongs to the company.
In this case, it would seem that the owner of the "recording" is the poor sap with ink stuck under his/her skin for the rest of his/her life. They have to bear the responsibility of looking ridiculous a couple years after doing it; they should be able to do anything they want. They own that recording, whether the design is copyrighted by the artist or not.
I'd be very interested to see how any of this would stand up in court. Using the precedents with musicians (or even better, textbook-writers), it seems that any IP lawyer worth his salt should be able to shut such silly claims to others' skin down in 5 minutes flat.
Thanks for the link! The full paper is still in progress, but I'll make a screencast of the slides and my talk later on today and post it at twitchgamer.net.
While the copyright issue with famous people and their use of tattoos on merchandise is an issue, for modified people I think the scalping of tattoos that were specially designed for them is the bigger issue. Nothing really kills you more I think than realizing your tattoo hand designed for you by your tattoo artist is being sported by someone who saw a photo of it and decided it was their new flash piece.
If people haven't seen it, Needled's Marisa Kakoulas wrote one of the first pieces I think discussing the legal implications of tattoo copyright for BMEzine link.
More than anything else, as tattooing is a rather subcultural community most tattoo artists I know (and what Marisa discusses in the article) would rather have their work copied than get lawyers involved.
I find it somewhat amusing that, as far as I can tell from searching my records, no permission was sought for the use of the many copyrighted photos from BMEZINE.COM that are used to illustrate this project... (Not that I really mind in this case -- I just thought it was funny)
Hi Shannon -- While I didn't intend for the slides to get posted, I felt that I had a clear fair dealing argument (in the UK) or fair use (in the United States) for using the images for a conference presentation. Thank you very much though for the great site! I am a huge fan of your work and of BMEZINE.
I had a dream once that a friend of mine got a Seven-Eleven tattoo, but then got sued because the logo didn't follow the corporate spec sheet.
...and that was when I realized that I needed to get away from the cubicle.
Emily Daturazoku (7): I understand the distress of tattoo wearers who've commissioned a unique piece and had it copied without permission. That said, a while back I was browsing an expensive coffee table book about fabulous tattoos, and discovered that one of them was a direct ripoff -- everything but the logo and typography -- of a Tor fantasy book jacket.
That reminds of a very interesting short story by HH Munro. http://en.wikisource.org/wiki/The_Background
The Background tells the story of Henry Duplis, who carries the last great masterpiece of a renown tattoo artist on his back. He is unable to pay the artist's widow and loses ownership of the tattoo, which is promptly donated to the city!
RE: Kyle Armbruster and "works for hire"
US copyright law divides “works for hire” into two categories:
(1)works made within an employer/employee relationship, and
(2)works “specially ordered or commissioned for use as[,]” among others, “a contribution to a collective work”.
See 17 U.S.C. 101 “work made for hire”
Works for hire uniquely vest with the employer or commissioner of the work rather than with the creator—the creator has no copyright interest.
Out of the listed categories, I think only "a contribution to a collective work" argument would work for tattoos. Something like doing one of Enigma's puzzle pieces. The other categories are things like a motion picture, or for teaching.
Even if you could fit a tattoo as a "work for hire" either as a collective work or under one of the other categories, one of the requirements is that you written instrument saying that it is a "work for hire". As tattoo artists don't (AFAIK) routinely deal with copyright, they aren't likely to have had a written instrument covering this.
As to employer/emmployee relationship, this is highly unlikely. In CCNV v Reed, the US Supreme Court listed some factors for finding this relationship, including:
...the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.
I think based on the typical scenario that it is highly unlikely that there would be an employer/employee relationship here.
I worked as a tattooer and worked within the tattoo community for some years, and I assure you that the issue of ownership and attribution is alive and kicking, but not as sensationalized as presented here.
I remember when the Reed vs. Wallace issue came up years ago, and how we all laughed at it: was Wallance's barber also suing Nike? Tattoo feels like the purest form of copyright in the world: here, I'm giving this to you in a manner that you are now essentially INGESTING. The ink molecules are trapped inside skin cells and will only degrade from this moment on. It's impermanence and permanence ruthlessly and impossibly together. It is a visual and cosmetic art, one that will from that point on be understandably more of the customers than the tattooer that used her years of experience to put it there.
I've thought over the years how utterly opposite this is from the fashion industry, a world similar despite it's polarity. In both instances you have an artist producing an ephemeral object that is designed solely to be seen by other people in relation to it's customer. However, when Meryl Streep enters a room wearing a Chanel dress, no one looks at her and says, "That Meryl Streep dress is fantastic," they say, "That Chanel is fantastic." The dress exists on it's own plane, and has a feel of attribution and ownership NOT to it's wearer.
Compare this to David Beckham and his tattoos. Those are "David's tattoos." The tattooer that worked on him has bragging rights to having done so, but the populace at large does not think to associate the tattoos with an unrepresented, unnamed artist, and perhaps rightly so: Beckham and his tattoos are a final, fabricated image, Beckham as he imagines himself into being, a combination of living tissue and inert molecules that can never be reproduced again exactly as they are.
It's important to combine these fantasies, like the fantasies of total enduring copyright in a tattooed image, with a grain of salty reality: tattoo artists understand that they don't control the person around the tattoo, and therefore they don't control the tattoo. There are expectations, codes of conduct, honor systems and the like, but there is not control. A wise tattoo artists does their most elaborate work on a customer whose personality they also respect, someone who treats the images with physical care and who will, in pride, give the tattoo artist credit where credit is due. In an ideal world.
What a strange issue. I can certainly understand if an artist takes exception to another artist copying their designs, but I can't believe any would object to a client disaplaying their own body any way they see fit. I do think it's aklin to the dress issue- as per the example above Meryl certainly doesn't need permission to wear her designer dress to be photographed in; the same I imagine holds for decorated skin.
I'm also happy I opted for antique art myself so i won't have to worry about some furure claim on my skin.
Ah, I'm suddenly overcome with a need to read Roald Dahl's "Skin."
amina munster is actually the first person to hold a copyright on a tattoo. the work was done by tim kern of last rights tattoo. she wrote a piece about it in tattoodles.com.
I never thought of this becoming a copyright issue. How complex the world is. What next? Will plastic surgeons want copyright rights on the boobs plastered all over magazines? Celeb tattoos
This is new?
The Hells Angels developed a very successful tattoo copyright method decades ago.