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.