Copyright in a tattoo is a little more complicated than regular copyright because the canvas is someone else's skin.

For copyright to apply to a tattoo it must be an original artwork; which has resulted from some skill and effort on behalf of the artist; and is not just copied.

There will likely be a license between the artist and the wearer to use that artistic work as it was intended (a tattoo on the skin).

But things get more complicated when the wearer commercialises or records their tattoo without permission. This may give rise to copyright infringement.

This article will explain the rights of tattoo artists and tattoo wearers.

What is Copyright?

In Australia, copyright law is found in the Copyright Act 1968 (Cth).

Just as the name suggests, it is the legal right (or a number of rights) to copy (or reproduce) any original creative material such as artistic works, computer programs, films, music, sound recordings, and a lot more.

It basically gives the creator of the creative material the right to control how that material is used.

Copyright does not protect ideas, techniques, styles, and/or concepts.

Copyright in a Tattoo

Copyright subsists in all original artistic works. There is no need for registration in Australia (like with trademarks for example).

Copyright protects all artistic works such as architectural plans, buildings, cartoons, craft work, drawings, maps, paintings, photographs, plans, sculpture, and tattoos .

However, the tattoo must be original and not generic such as tattoo flash or words like "mum" or the name of a partner. Copyright may not exist in headlines, names, single words, slogans or titles either. Copyright may not exist in images of people or people's faces.

In Australia, for a tattoo to be original it means that the tattoo is not simply a copy. It must have been created with skill and effort, and it has been created by a human author.

Who Owns the Copyright in a Tattoo?

As with other types of artistic works, the owner of the copyright in a tattoo is the creator of the tattoo.

This is likely to be the tattoo artist.

However, this might not be the case. In most cases, if a person is employed by the tattoo shop, then it might be the tattoo shop entity that is the owner of the copyright.

If you are a tattoo artist, it is important that there is a written employment agreement with a clause which deals with copyright ownership.

Does the Tattoo Wearer not Own the Copyright in a Tattoo?

Unless there is an express agreement between the copyright owner and the tattoo wearer, the copyright will be owned by the creator of the tattoo (or their employer).

The wearer owns the tattoo but does not own the copyright in that tattoo.

There is an implied license between the copyright owner and the tattoo wearer to use that tattoo as a tattoo.

In Beck v Montana Constructions Pty Ltd [1964] NSWR 229, the Court said:

[T]he engagement for reward of a person to produce material of a nature which is capable of being the subject of copyright implies a permission, or consent, or licence in the person giving the engagement to use the material in the manner and for the purpose in which and for which it was contemplated between the parties that it would be used at the time of the engagement.

So, this means that if you pay money for a tattoo, then you have a license in law to use that copyrighted material as it was intended, as a tattoo.

However, this means that you do not have permission to use that tattoo however you please.

Copyright Infringement for Tattoos

There are no Australian cases in relation to copyright infringement of tattoos. However, there are a few cases from overseas.

It will almost always be where it has been commercialised and the copyright holder is not consulted or remunerated.

Whitmill v. Warner Brothers Entertainment, Inc.

Probably the most famous case is S. Victor Whitmill v. Warner Brothers Entertainment, Inc. over the use of his copyrighted Mike Tyson face tattoo in the film The Hangover Part II.

Victor Whitmill, the tattoo artist who tattooed Mike Tyson's face, sued Warner Brothers because they used the image in the Hangover movie.

The issue was that they were commercialising his work and making money from the movie which included his work without permission.

The matter settled out of Court for an undisclosed amount.

Solid Oak Sketches v 2K Sports

2K Sports make sporting video games, including the NBA 2K series. Solid Oak Sketches is a tattoo licensing company.

The characters of LeBron James, Eric Bledsoe, and Kenyon Martin were created including their real tattoos. So, on behalf of the tattoo artists, Solid Oak Sketches brought a lawsuit for copyright infringement.

Scott Allen v Electronic Arts Inc.

Another video game matter, American football player Ricky Williams's tattooist Scott Allen sued Electronic Arts for the use of his copyrighted tattoo in various American football video games.

Scott Allen also sued Ricky Williams for a share of the profits that he earned from any use of the tattoo in the games.

This was also settled out of Court.

Christopher Escobedo v THQ Inc.

Christopher Escobedo is the tattoo artist who tattooed the lion on UFC fighter Carlos Condit. THQ designed the video game UFC Undisputed 3, which displayed the tattoo.

Christopher Escobedo sued THQ for copyright infringement for copying the tattoo in the video game without permission.

Escobedo argued that he granted Carlos Condit an implied license to display the tattoo, but he did not give permission for any reproduction of the tattoo.

The case was dismissed for failure to prosecute.

Copyright in a Tattoo

There are a few things to take away from this article:

If you are an employed tattooist working in a studio or shop, make sure that you have a written contract in place if you want to retain copyright in your artwork.

If you are a tattoo studio / shop, think carefully about whether you want to own the copyright in your artists work, or if you want them to own it.

If a tattoo collector pays for a tattoo, then there is likely an implied license at law that the artist grants them to use the tattoo as a tattoo.

If the collector commercialises your artwork or seeks to make money from it (in marketing or advertising, or on t-shirts for example) then you may have rights to a share of those profits.

This is an emerging area of law in Australia, and so there are a lot of undecided issues.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.