Tattoos as Protectable Art

Barney Davey, an art marketing author, speaker, consultant, and blogger, wrote and published a very favorable review of my book, The Permission Seeker’s Guide Through the Legal Jungle, on his Art Print Issues blog. Thanks Barney!

Barney’s discussion of my book yielded a question from Richard Harrison (www.salestipsforartists.com) regarding the rights of tattoo artists in their original designs.

Here’s Richard’s question and my response:

{Richard}:  When technology and art trends intersect, new legal questions might arise. Tattoos have become an “in” thing and tattoo shops are proliferating like rabbits. Here are Tattoo Questions for the artist and anyone who gets a tattoo. As soon as an artist creates a work of art he or she owns the copyright, not just to any sketches, but to the original and also to the derivative rights. I think that means if the original art is sold, the artist still owns the copyright and can produce "derivative" works, such as prints, etc. unless the copyright is sold in a separate transaction.

{Joy}: That’s correct – and very clearly stated.

{Richard}: Here are the questions: Who owns all rights, including the right to use the tattoo design for other purposes, you the bearer of the work of art or the tattoo artist who created it?

{Joy}: As the creator of the design, the tattoo artist would own all rights in the tattoo design – unless the tattoo artist signs a written document transferring the copyright in the tattoo design. I would guess that many tattoo artists often do not use their own original designs. Instead, they use designs created by other artists. In those cases, it’s the original designer of the tattoo who holds the copyright; not the tattoo artist actually applying the tattoo. Hopefully, any tattoo artist applying another artist’s original designs is doing so with the benefit of a valid license agreement.

{Richard}: If it's the tattoo artist and he wants to publish a giclee print or a poster of the original art on your butt, can he force you to be photographed?

{Joy}: That’s a no.

 

{Richard}: Suppose it was Britney Spears’ butt? Tell me with a straight face, you think there wouldn’t be a market for a print like that.

{Joy}: I’m going to decline the invitation to speculate on what value should be accorded to Ms. Spears’ posterior end.

{Richard}: Do any tattoo artists give their clients a legal release to the copyright for original art they create on their bodies? Should they?

{Joy}: I’m not sufficiently familiar with the practices of tattoo artists to answer that question authoritatively. However, even if providing a release is not a part of their regular practice, I would argue that if a tattoo artist places a design on a part of a client’s body that is normally visible, the client has an implied license from the tattoo artist to photograph and reproduce the tattoo as part of any photographs taken of the client. Just because you have an original tattoo design on your arm can’t mean you’re forever prevented from wearing short sleeves in your family pictures.

{Richard}: If you have a tattoo and have it photographed, then printed as a giclee and offer it for sale without the artist’s consent, can the tattoo artist sue you or claim damages?

{Joy}: If you’re taking photographs or making reproductions that clearly feature the tattoo design, your actions are arguably actionable as copyright infringement.