Who Really Owns Your Tattoo?

[strickj]

Ok, I know this is going to be the last thing on the minds of a typical gun board visitor... but I know that there are several lovers of the art within the ink here... so I thought that I would pose the discussion. I thought it was pretty interesting, myself.

Warning: Just stay with me here. I'm gonna get kinda winded!

On another board, a photographer asked if a usage release was needed from the tattoo artist that tattooed the model he was planning to shoot. In the world of photography, a release is always needed when photographs are taken of anything that's easily recognizable, including people, when those photographs are to be used for commercial purposes, like in his case. The photographs were ultimately going to be used commercially by the photographer, so no 'fair usage' applied.

Now, the easy and obvious answer here is going to be a big "no". When you get a tattoo, you buy it and it's on your body, so it's yours. With that, a release from the model herself would be enough to cover his (photographer) use of the model's likeness, including her ink. Right?

Well, maybe not! Every artist, from photographers to sculptures to graphic designers, will immediately own the intellectual rights to their created art the instant it is created. That means every photograph a photographer takes is owned by the photographer as soon as it's taken. Every graphic made by a graphic designer is owned by the graphic designer as soon as it's made. Every song made by a song writer is owned as soon as it's written. Now, artists will rarely ever outright "sell" the complete rights to their art, unless big bucks are involved.

By writing out terms of usage for their creation, artists make their living. Each and every one.

What that means is that when you, the customer, pays the artist, you are not necessarily buying the art itself, right out. You are actually buying usage rights to use that artwork. The artist will determine the usage that is granted for that art work.

IE, an artist will often declare whether it can be use for personal use, commercial use (the "buyer" profiting from it), used "here but not there", or even timed usage where any usage will expire upon a certain date.

This very thing happens with everything from photographs to website designs to sculptures displayed publicly downtown.

In order to use any of the art, you, the customer, must have written permission for that use from the creator, the owner. If within that contract, or written permission, it does not include commercial usage, then you can not use it commercially. If within that contract, or written permission, it does not include reproduction, then you can not reproduce it (for a tattoo, reproduction would be letting a friend get one like it).

There is a lot of case law regarding intellectual property rights and those cases will usually always side with the creator during a dispute of rights. With a few exceptions to things like verbally expressed or implied usage.

A tattoo artist's art is his tattoo. Going by the rights of other artists and case law, you could assume that the tattoo artist will actually own all of the tattoos they have created. Unless, of coarse, the contract the customer signed before getting the tattoo included usage (mine never did).

The argument here is that the only rights a tattoo customer has is 'implied personal-display usage'. This would be similar to being able to hang a painting in your home but not on a billboard.

That's because, by permanently placing their art on you, the artist implies that you can personally display it privately and publicly. There is no further 'implied usage' beyond that. So, unless you have written permission from that artist, the customer can not use it otherwise. The customer can not reproduce the art, profit from the art, use it commercially, etc.

At this point in time, the only difference between the intellectual rights of a tattoo artist and his art, and any other artist and their art, is the lack of case law, as far as photographing commercially is concerned.

The only known case is the case between Matthew Reed vs Rasheed Wallace and Nike, 2005 IIRC.

In a nut shell, Reed, the tattoo artist, sued Wallace, a pro basketball player, for copyright infringement for the artwork being shown in a Nike commercial. Which Reed claims Wallace did not have the rights to do. The case was ultimately settled out of court.

I'm not personally sure if being settled out of court is grounds for it to be actual 'case law' to be used in future law suits, but it does show that a lot of money can be lost if you choose to misuse your ink.

However, there are more cases from tattoo artists concerning copyright infringements, though. After a quick Google search, I came up with Aaron Coleman vs Travis Baker and Stars And Stripes Clothing. In this case, Coleman claims Barker used his tattoo design in Barkers clothing line, Stars And Stripes. This case seems to still be pending. Though, it does show that anyone with Coleman's tattoo does not own it, even though the tattoo may be etched into their skin.

All of this said to show that the actual barer of a tattoo may not have any rights to the tattoo, past an implied personal display usage. Even though there is less case law on copyright infringement with tattoos, compared to copyright infringement for other forms of art, there is still enough case law and written copyright law there to support the claim that the creator ultimately owns the intellectual rights to the tattoo.

Now, of coarse, all of this is moot for the average guy with tattoos... but it sure makes you think, eh?

Phew! Discuss...

Edited February 25, 2011 by strickj

[laktrash]

I don't have a tatoo but the copyright thing is getting crazy . Just like the karaoke and music lawsuits' A tatoo artist could do hundreds of tatoos and down the road sue for copyright in fringements. say that they are his designs or that he stole some else designs and now pay up or burn it off. I know this is basicly what you said "I think"

[DaveTN]

but the copyright thing is getting crazy

yep...its out of control.

[kieefer]

I guess if a tattoo artist would sign their work that would solve it, huh?

[Chief07]

Well, 20 years in the Navy and I don't have even one tatoo.

I never understood why you would put a picture on your body

that you would'nt put on the wall.

Just my thought.

[strickj]

I don't have a tatoo but the copyright thing is getting crazy . Just like the karaoke and music lawsuits' A tatoo artist could do hundreds of tatoos and down the road sue for copyright in fringements. say that they are his designs or that he stole some else designs and now pay up or burn it off. I know this is basicly what you said "I think"

Well, kinda... but not really. What I did say-iif an artist designs a piece of art, he ultimately owns that design. Even if that artist is a tattoo artist and his art is your tattoo.

He can ultimately sue you for reproducing, profiting from, or using commercially if you do not seek the proper permission to do so.

What I did not say is that a tattoo artist could sue you if your tattoo was his design but was done by 3rd party. In that situation, the designer would have to sue the tattooist that stole the design, not you.

yep...its out of control.

Actually it's not. A copyright is much like a trademark or patent. If you invent something, would you want someone to start selling copies of your hard work and profiting from it? Absolutely not.

An artist does not want someone profiting from their hard work either...

As far as karaoke or music infringements goes, google "fair use". I don't feel like explaining everything, but basically, you can sing someone's song but you can not change the words. There is actually "fair use" for everything copyrighted.

[Punisher84]

I guess if a tattoo artist would sign their work that would solve it, huh?

I checked all of mine. I couldn't find a signature lol

Im sorry but I just don't buy into the comparison. A tattoo artist is providing a service and are only an artist in a very limited sense of the world. You are not modeling their ink, you are paying them to place something on you. It may not even be their design. Many people choose tattoos drawn by friends, picked from Flash, etc. I just don't see it ever being something that's a big issue.

[strickj]

I checked all of mine. I couldn't find a signature lol

Im sorry but I just don't buy into the comparison. A tattoo artist is providing a service and are only an artist in a very limited sense of the world. You are not modeling their ink, you are paying them to place something on you. It may not even be their design. Many people choose tattoos drawn by friends, picked from Flash, etc. I just don't see it ever being something that's a big issue.

Nope, never gonna be a big issue! They make their money from word of mouth almost exclusively. A TA would be an idiot for claiming an infringement unless it's against someone famous (like the st case mentioned) or used commercially(like the 2nd case).

That's not to say that they don't own the intellectual rights, though. Like mentioned, all artists make their living off of writing usage of their art in licensing. It doesn't matter if they're hired to do that particular job or not. It doesn't matter if the actual design itself is of their own, either. The artist still created the art so he owns it, unless it is spelled out specifically that he is giving you his full rights.

You can hire a photographer to take shots of X and give him specific details on everything on how and what to do, but at the end of the day, that photographer owns the intellectual rights to those photos unless it is specifically spelled out in the terms that he does not.

You can hire a painter to paint your portrait... well you get the idea...

It's like that for everything. If it isn't spelled out in writing (or otherwise expressed), then the creator owns it.

Edited February 26, 2011 by strickj

[ftncityfatboy]

I'll ask my artist next time I get another one....

[buck1032]

Well, 20 years in the Navy and I don't have even one tatoo.

I never understood why you would put a picture on your body

that you would'nt put on the wall.

Just my thought.

I'm glad I am not the only one. LOL 20 years in the USN and have riding motorcycles for longer than that and still havent gotten a tat. After 43 years on this earth I guess I could go a while longer without one.

[memphisjim]

interesting post and i dont know

but i do remember hearing about frank sinatra going of on someone by sending in a letter, he first copyrighted the letter saying that it could only be reprinted or quoted in its entirety

therefore no one could misquote him out of context

pretty smooth

[Guest nosnos]

Strickj, I'm no lawyer, but based on what I know about copyright law, I think you're absolutely right. And as for copyrights being out of control or something, that's crazy. Intellectual property is a VERY important part of our economic system.

If more people were profiting from their tatoos, there would be more case law. The fact that the one case settled out of court just goes to show that the tatoo artist had a legitimate case.

And fair use doesn't really apply to singing someone elses song. BMI and ASCAP are designed to get money from places where people's songs are being played (for dances or something) or performed (bars and music venues). Fair use applies more if you DO change the words, as in a parody (Weird Al).

--------

[strickj]

Just wanted to add a better suited comparison before heading off to bed...

It's kind of like going to WalMart and buying a movie or a CD. You may actually be 'buying' the movie or CD in it's physical form but you are not buying the actual intellectual property of that movie or CD. Unless the actual owner of the intellectual property specifically grants you the right to copy that CD or movie, then you can not copy it.

The same applies to all intellectual property. The owner must specifically grant permission for each type of use. If no specific use is expressed, then the implied "personal use" is going to apply upon exchange of payment.

I'll ask my artist next time I get another one....

You know, I wouldn't say that your ordinary a tattooist will know anything about copyrights.... or any laws as far as that's concerned. I hate to paint with a broad brush here, but I've meet a few and they all fit into that stereotype

(kidding folks!)

[vontar]

I am sure they are going after the big scores like when they do one that later ends up in a movie or some other publication.

However, they can not own the person. Slavery has been abolished. It will be interesting to see were case law goes.

They might make the Tattoo artist fill out paper work at the time of the tattoo and have the customer sign off if they every want to claim any copy right. In which case many customers will just go to the next guy.

[DaveTN]

Actually it's not.

Sure it is. When we can’t post a news story because the owner of a forum has to worry about being sued; it has gone too far. (That won’t last long; it’s just the latest internet drama.)

As far as the tattoo goes…. Once he puts it on my body he has relinquished any rights of how when or where it is displayed. Another artist might have problems if he copies my tattoo, but if I want to take a picture of my tattoo and display it on the front page of the paper I can do that; I own it.

[laktrash]

fair use doesn't really apply to singing someone elses song. BMI and ASCAP are designed to get money from places where people's songs are being played (for dances or something) or performed (bars and music venues). Fair use applies more if you DO change the words, as in a parody (Weird Al).

--------

there are groups that charge a fee for karokee, juke box, live entertainment I could walk in off the the street and sing and the place could be sued . Its not about the orginal artist or writer its about a bunch sharks thats figured a way to flimflam money out of honest people trying to make a living. Its on going thing

[Guest mikedwood]

there are groups that charge a fee for karokee, juke box, live entertainment I could walk in off the the street and sing and the place could be sued . Its not about the orginal artist or writer its about a bunch sharks thats figured a way to flimflam money out of honest people trying to make a living. Its on going thing

Billy Joels true life story as well as Ozzy in the Black Sabboth days are two examples of the sharkiness of it all in the music industry. Billy Joel has been screwed out of more money than any other person alive I think.

The tattoo question is interesting. I know when shooting a film you have to be careful and make sure no one is wearing a trademarked shirt and careful of art on the walls. You should have rights to everything. I have never considered the tattoo issue though cause it's is attached to the persons body.

[Guest nosnos]

Its not about the orginal artist or writer its about a bunch sharks thats figured a way to flimflam money out of honest people trying to make a living. Its on going thing

Those sharks at ascap represent and give money to the songwriters, you know?

--------

[Guest nosnos]

However, they can not own the person. Slavery has been abolished. It will be interesting to see were case law goes.

They might make the Tattoo artist fill out paper work at the time of the tattoo and have the customer sign off if they every want to claim any copy right. In which case many customers will just go to the next guy.

Of course the tatoo artist doesn't own the person! They do, however, own their intellectual property, the artwork.

An author of a book doesn't own the paper its been printed on, but they DO own the specific collection of words, even if it is printed on something else, like the internet. The tatoo artist doesn't need to sign anything, since all copyright law is clear that he has his rights from the moment of creation of the artwork. If you want to own the work outright, the customer would be the one who needs to get the artist to sign away their rights.

--------

[Guest nosnos]

Another artist might have problems if he copies my tattoo, but if I want to take a picture of my tattoo and display it on the front page of the paper I can do that; I own it.

Okay. Sure you can. And since you aren't making any money on your front page story, the artist has no motivation to sue. But if you take that bada$$ tattoo, make a lunch box out of the artwork, and start making millions, I assure you the artist will want their cut, and I think they have legal rights to sue. Its not so simple as "owning" it.

--------

[Guest Sprowse]

I think you're overthinking it a bit.

A tattoo would be like any other commissioned work of art. The artist passes control of the art to the commissioner at completion of the transaction. The owner of the art may do with the art as he pleases. The artist would have to establish and maintain control of that work, which is impossible when it's stabbed into the skin of some patron. If the artist doesn't own, or have the capacity to own the medium on which the art is displayed, how can they exert their intellectual property rights?

This is one of their cases where a passing understanding of the law may lead one to believe something like this is true, but reality and common sense tend to prevail.

[Guest nosnos]

This is one of their cases where a passing understanding of the law may lead one to believe something like this is true, but reality and common sense tend to prevail.

Is the law subject to common sense? I think not.

Id love to hear what "commissioned art" law you're referencing.

--------

[laktrash]

Those sharks at ascap represent and give money to the songwriters, you know?

--------

so I guess if you sing margaritaville on the way to work you should drop Buffet a 5 spot in the mail via some lazya**

I m all for the artist getting is due but not some shyster middleman.

[DaveTN]

Okay. Sure you can. And since you aren't making any money on your front page story, the artist has no motivation to sue. But if you take that bada$$ tattoo, make a lunch box out of the artwork, and start making millions, I assure you the artist will want their cut, and I think they have legal rights to sue.

So… you think when some of the heavily tattooed models are hired (because of their tats) the tattoo artists all line up with their hands out?

Of course they don’t; that’s ridiculous.

Its not so simple as "owning" it.

Sure it is.

[Guest nosnos]

Ha ha... Nice! You make a great point, laktrash!

--------