Tattoos - who owns the copyright?
Written by Michael Coyle on 07 August 2014« Return to Reading Room
I hate them but many love them. As the new season dawns football players are becoming more and more popular on and off the pitch, players are being advised of a potential copyright issue that arises in respect of their tattoos.
Tattoos are very popular with many of the biggest football stars such as David Beckham who is very proud of his cornucopia of ink on his body, but with them appearing in games like Fifa and Pro Evolution Soccer, their tattoos will naturally have to feature with them to make the experience more realistic for the player.
Due to the fact that another’s copyrighted work appears on a game in which there is no permission, it could create copyright infringement problems. The National Football league in America has raised these concerns to its members and has advised them that when they get a tattoo they should get a release from the artist, or in the case of existing tattoos they should track the artist to get a release.
This isn’t the first time a claim like this has come up; back in 2012 there was a dispute concerning the game “UFC Undisputed 3” where Carlos Condit, a mixed martial artist, was featured with the tattoo of a lion on his ribcage. The Artist of the tattoo then sued the game manufacturer THQ. Unfortunately THQ went into bankruptcy and all that was given to the artist was $22,500 - a drop in the ocean compared to the $4.16 Million the damages had been valued at.
It is unclear whether tattoos are actually protectable in American copyright law, and the case that could have got closest was settled out of court. The Hangover Part II case was the possible answer to all of these problems, and concerned Mike Tyson’s tattoo. It was stated in that case that there was a strong likelihood that the copyright claims would have prevailed.
How does this apply to the UK?
Under the Copyright, Designs and Patents Act 1988, it is likely that a tattoo will be classed as an “artistic work” under Section 4, and therefore where skill and judgement have gone into the creation there will be copyright over the image. This section does not mention tattoos and it is uncertain as to whether it will apply to that of ink under a person’s skin due to the fact that there have been so few cases that have arisen on this area, however, due to the wide scope of section 4 it is possible that it is included.
One requirement is that the tattoo must be original. There have been many cases on what constitutes original work. One such case is that of Ladbroke Ltd v William Hill, which required “Knowledge, Labour, Judgment, Literary Skill or taste”. Tattoos that are bespoke to the tattoo artist and therefore not a generic design will in all likelihood be the result of skill in the drawing of the tattoo, knowledge of how to tattoo as well as generic artistic taste to create a work of art on another’s body.
The famous case concerning literary works “the University of London Press Case”, J. Peterson stated that originality does not mean that it must be original or of new inventive thought, however it is the expression that must be an original expression of the thought and simply must not be copied from another work. Simply put, if a tattoo is an original artist’s take on an idea or an existing work which he changes and makes his own then copyright should exist in the work.
Over the past few years with the rise of the tattoo there has been a reluctance to apply the law of copyright to the industry. One such argument is that tattoo artists in general are not wealthy and operate one shop and are unable to try and enforce their rights in their work due to the cost of taking the claim to court. This however can be contrasted by the likes of new celebrity tattoo artists that are emerging like that of Ami James, the founder of the television show Miami Ink, who has an estimated wealth of $5.1 Million, and are more likely to be able to enforce claims of copyright.
Another possible reason why copyright law has not been applied to this area is that that there are discussions as to whether tattoos are sufficiently permanent to warrant being a copyright work. In the Australian case of Komesaroff v Mickle & Others, it was held that items of “kinetic art” being art drawn in sand lacked the permanence to be considered a copyrighted work, this was held similarly in the case of Merchandising Corporation of America v Harpbond where facial makeup was held to be similar to sand paintings, lacking sufficient permanence. This English case was very famous as it concerned Adam Ant and his choice of self styled facial makeup for his “Prince Charming” look. He argued that there was sufficient copyright in the work and a poster company had abused his rights by using it without his permission. This case is particularly important in this situation as Lawton LJ in this case held that skin cannot be the surface of a painting in the way that a canvas can. The discussion of permanence boils down to the fact that with current medical procedures tattoos can be removed with lasers and the rule on affixing and permanence therefore will not be met. Tattoos that are on areas prone to heavy use such as hands and feet which lose the most skin are also akin to be removed naturally and hand tattoos especially on the palm will naturally disappear within 6 months to a year.
Another problem arises where a client creates an original piece of art and wishes to have it tattooed onto their skin. The question here is who would be the copyright owner of such work?
The answer will be the person who created the design in the first place, the client. However if the client asks for a custom piece by the artist then there will be confusion as to who the author is. In this situation although the artist will come up with 90% of the artwork itself, the client will choose the colour, placement, size and other aspects of the design itself. In another situation the client themselves may come to the artist with a detailed description of what they wish to have tattooed on them but it will be down to the artist to flesh out the idea and create the final work.
In Cala Homes (South) Ltd v Alfred McAlpine Homes East Ltd, it was held that where a drawing had been made but there was input made by another person as to what had to be included, Justice laddie Laddie held that they will be a co-author of the drawings. Applying this decision to tattoos it will be likely that where there is a custom work by an artist but with the collaboration of the client as to the placement and features, there will be joint authorship between the client and the artist.
According to the Copyright Designs and Patents Act 1988 the author or the creator of the work will be the tattoo artist, but in the situation above it can also be co ownership. However there is a third possible owner and that will be where the tattoo artist is employed by the owner of the shop and therefore the employer will be the owner of the copyright.
In the UK there has been no current dispute over the rights of the tattoo artist as an employee, however in Virginia there have been clarifications in their law. These issues were discussed in the case of Creative Designs Tattooing Associates Inc v Estate of Earle Lindsey Parrish III, where it was held that a tattoo artist was an independent contractor because he directed his own work, provided his own tools and supplied and chose his own working hours and decided how much to charge his customers. Considering many tattoo parlours operate under the same model it is unlikely that in this country a court would award ownership to the owner of the shop.
It is likely in this situation that a court hearing a case of copyright infringement concerning the unauthorised use of a tattoo will have to consider the use of an implied license. An implied license is a license that is unwritten and does not require the express permission from the other party. If an implied license is not used then issues could arise, such as the body having to be covered up, issues with controlling who sees it, a possible breach of human rights, and also that with use of advertising. Another disturbing problem will be that if an implied license will not be used by the courts then it will interfere with the right to have the tattoo removed if they so wish. In a disturbing reverse to this situation could the tattoo artist force a person to have the tattoo removed against their will?
Overall I have analysed common law and how the law may adapt to incorporate such changes to intellectual property law without the need for parliamentary intervention. The overall result is somewhat unsatisfactory at the moment and currently tattoos pose a grey area in the law. There is a lack of willingness in the industry to impose such laws as it concerns matters that they have no experience in. Despite the lack of willingness other artists are clearly interested in protecting the rights in their designs and will potentially create a new source of revenue that has previously been untapped.
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