Copyright and Tattoo Art
Tattoos are everywhere, especially in the U.S. About 30% of the adult population in the U.S. has a tattoo. As tattoos have gained widespread acceptance and visibility, they have also entered the realm of intellectual property law, specifically copyright. The intersection of copyright and tattoo art presents unique challenges and opportunities for both artists and clients.
Tattoos are often original works of art, created by skilled artists who invest considerable time and creativity into their designs. These creative works are eligible for copyright protection which gives the artist exclusive rights to control how their designs are used and reproduced.
The fact that tattoos are put on a human canvas complicates the application of traditional copyright principles. The art's unique substrate—a person's skin—raises important questions about ownership, rights of reproduction, and the responsibilities of both artists and those who wear their work.
The Historical Roots of Tattoos
Tattoos have a rich and varied history that spans thousands of years and multiple cultures across the globe. The practice of tattooing dates back to at least 5,000 years ago, with evidence of tattoos found on the mummified remains of ancient people.
One of the earliest known examples is Ötzi the Iceman, a well-preserved mummy from around 3300 BCE discovered in the Alps. He has a total of 61 tattoos on his body, believed to have been made for therapeutic or symbolic purposes.
In ancient Egypt, tattoos were often associated with religious and cultural practices, particularly among women. Artifacts and mummies from around 2000 BCE suggest that tattoos were used as protective symbols or to signify a person’s status or role in society.
Similarly, in Polynesian cultures, tattoos held deep spiritual and social significance. The word "tattoo" itself is derived from the Polynesian word "tatau," and in these societies, tattoos were used to mark important life milestones, convey tribal affiliations, and represent spiritual beliefs.
In Asia, tattooing has an equally long history, particularly in Japan, where the art of irezumi developed into a highly intricate and symbolic practice. Japanese tattoos often feature mythological creatures, floral motifs, and other elements deeply rooted in the country’s folklore and religious traditions. In China, tattoos were sometimes used as a form of punishment or to mark criminals, and today carry a stigma suggesting affiliation with organized crime.
Indigenous peoples in the Americas also have a long history of tattooing. Native American tribes used tattoos for a variety of purposes, including rites of passage, spiritual protection, and as a means of marking achievements in battle. The Inuit and other Arctic peoples employed tattooing as part of their spiritual practices, believing that tattoos could guide the soul after death.
In Europe, tattooing experienced various waves of popularity, particularly among sailors who brought the practice back from their travels to Polynesia and other parts of the world. King George V, Queen Victoria's grandson, was given a dragon tattoo when he was 16 by an artist in Yokohama. That may have been the seal of approval for the popular teenage trend.
Click to enlarge. Public domain image.
Copyright and Tattoos Today
As tattoos have evolved from a niche subculture to a mainstream art form (the global tattoo industry was valued at approximately $3 billion in 2023), questions about ownership, intellectual property rights, and legal protections for tattoo artists have become more pressing. The legal challenges faced by those in the industry when grappling with how copyright law applies to tattoos impact artists, clients, and businesses alike.
Copyright law is designed to protect original works of authorship, giving the creator exclusive rights to use, distribute, and modify their work. To be protected by copyright, a work must be original and fixed in a tangible medium of expression.
Tattoos meet those requirements. Tattoos are (or can be when not copied) original, creative expressions that are often designed specifically for an individual client. The "fixation" requirement is met when the tattoo is inked onto the skin because the artwork is fixed in a tangible medium—albeit a non-traditional one.
The tattoo artist, as the creator or author of the design, holds the copyright unless the rights have been explicitly transferred to someone else in writing. The writing can be a work for hire contract signed before the tattoo is created, or it can be a copyright transfer agreement after the work is created. But until there is a writing, the artist controls the copyright to the work. Copyright transfers are not particularly common in the tattoo industry, but they may become more common given the recent lawsuits and clients who want control over the art on their bodies.
The Canvas Has Greater Rights than the Artist
James Hayden is a tattoo artist who inked LeBron James. Hayden sued two video game companies claiming they were using his copyrighted tattoo works as computer-renderings in basketball video games without his authorization.
After more than six years of litigation, the tattoo artist lost the case. It was a jury verdict that held the video game companies had an implied license to depict the tattoos in their video games. Basically, the jury decided that LeBron has bodily autonomy over how and where his body can be depicted regardless of the ownership of original art that appears on it.
It took the jury only 90 minutes to return the verdict. And it makes sense. If an artist puts work on the body of a famous person, the artist can expect that person to appear in all kinds of media without the artist's permission.
Artist Has Greater Rights than Photographer
In a case where the tattoo artist wins, a photographer loses. Tattoo artist Kat Von D used a photograph of Miles Davis taken by photographer Jeffrey Sedlik as a reference for a tattoo for a client. Sedlik sued for copyright infringement and lost.
The jury took about two hours to decide that the tattoo and the photo were not substantially similar and therefore not an infringement. There are two ways to prove infringement. One is by showing access to the original work, plus substantial similarity of the second work to the first.
Kat Von D working on the tattoo with Sedlik's photo of Miles Davis in the background (from court documents).
"Substantial similarity" refers to the degree to which the accused work resembles the copyrighted work. If the two works are substantially similar, it may tend to prove that copying occurred.
The second way to prove copyright infringement is by showing direct copying. Direct copying in the context of copyright infringement refers to the act of exactly or very closely duplicating original, copyrighted material without the authorization of the copyright holder.
The verdict in favor of the tattoo artist is hard to understand and it is likely to be overturned on appeal. Here's why: To turn the Sedlik image into a tattoo, Von D used tracing paper and a lightbox to copy the main elements of the photo. Next, she transferred the traced image to her client's arm. As can be seen in the photo, she continued to reference the photo as she inked her client's arm.
This is not a case of creating something that is substantially similar. This is evidence of direct copying, evidence given by the artist herself at trial.
Implications for Tattoo Artists and Clients
For Tattoo Artists: Artists should be aware that their designs are protected by copyright and that they have the right to control how those designs are used. However, they should also consider the practicalities of enforcing these rights, especially in cases where a tattoo becomes widely known or associated with a particular individual. Clear communication with clients about ownership and usage rights is essential, and artists may want to consider using written agreements to clarify these issues.
For Clients: Clients should understand that getting a tattoo does not automatically give them ownership of the copyright in the design. If they wish to use the tattoo in commercial ventures, such as selling merchandise or appearing in media, they should discuss this with the artist beforehand. Clients may need to obtain a license or permission from the artist to avoid legal issues down the line.
For Businesses: Companies that use images of people with tattoos in their products or marketing should be aware of the potential for copyright infringement. This is particularly important in industries like video games, film, and advertising, where the depiction of tattoos is increasingly common. Seeking permission from the tattoo artist or obtaining a license can help mitigate legal risks.
Understanding Your Rights is Key
The application of copyright law to tattoos is a relatively new and evolving area of intellectual property law. As tattoos continue to gain cultural significance and visibility, the legal landscape surrounding their protection and use will likely develop further. For tattoo artists, understanding and asserting their copyright rights is essential to protect their creative work. For clients, clear communication and legal agreements can help prevent disputes over ownership and usage. And for businesses, awareness of the potential legal pitfalls is crucial to avoid costly litigation.
Ultimately, the relationship between copyright and tattoos underscores the importance of respecting creative works, no matter the medium. Whether on canvas or skin, art deserves recognition and protection, ensuring that artists can continue to create and innovate without fear of their work being misused or exploited.