Who owns your ink?

July 28, 2008 6:26 PM

Can you copyright a tattoo? Yes, you can. But there's more to it. The idea raises a lot of questions and concerns—for the artists, the inked-skin owners, and certain parties seeking to represent or showcase the work. Shortly after Marisa Kakoulas wrote The Tattoo Copyright Controversy guest article, featured at BMEZINE.com, she encountered a small legal battle of her own.

She wrote about it here, and sums up with, "But his story is a good example of how the modified community can fight back against those that violate our rights. I can almost guarantee he won’t mess with us again."

Christopher A. Harkins also weighs in, with his paper, "Tattoos and Copyright Infringement: Celebrities, Marketers, and Businesses Beware of the Ink" (PDF). In it, he describes how Matthew Reed (tattoo artist) sued Rasheed Wallace (of the Detroit Pistons), Nike, and Weiden & Kennedy (Nike's ad agency), for violating copyright law, when Rasheed's tattooed arm was repeatedly highlighted in a Nike campaign.

"The Reed case—and its nascent theory of a tattoo artist asserting copyrights in tattoos—has a potentially far-reaching impact on any would-be celebrity with a reasonable expectation of fame and on any present-day athlete, actor or actress, as well as advertising agencies and product purveyors and service providers. But the Reed case may also cause alarm for other media industries such as magazines, newspapers, Internet websites, motion pictures, television broadcasting, and the entertainment industry."

posted by iamkimiam (32 comments total)

Seems like you could argue it's a work for hire, but the law is more complex then "I paid for this, therefore it's a work for hire"
posted by delmoi at 6:35 PM on July 28, 2008

I think the more interesting argument is that it's a derivative work, therefore it's not copyrightable. Many tattoos I've seen seem to be based on different kinds of graphic and cultural icons. I also think that the attorney in the article had a better copyright case based on the use of stolen photographs of the tattoo from websites rather than the actual tattoos.

Still, as a graphic designer, this is interesting. I would like to see how this shakes out.
posted by Mcable at 6:57 PM on July 28, 2008

And the there's the problem of resale rights (Droit de Suite.)
posted by StickyCarpet at 7:02 PM on July 28, 2008

What kind of degenerate parasite would want to lawyer up the tattoo community?

Pat Fish:

“Attempting to bring lawyers in always makes things worse. They are the Harpies, they shit on everything they feed on. No one in their right mind would ever try to bring lawyers into the tattoo world, especially not for something as trivial as this. They will look for those who want to celebrate their status as victims, and those of us who want to live lives of creativity will suffer.”

This.
posted by mullingitover at 7:05 PM on July 28, 2008

"This area has been by-and-large untainted by lawmongering, therefore I should ruin it!"
posted by TheOnlyCoolTim at 7:22 PM on July 28, 2008 [1 favorite]

…the modified community?
posted by signal at 7:32 PM on July 28, 2008

The body modification community, I would imagine.
posted by Donnie VandenBos at 7:41 PM on July 28, 2008

…the modified community?

Yes, there's an internet-driven social scene involving tattooed, pierced, implanted, amputated, nullo saline-injected, or otherwise modified people. Why would this be a surprise?
posted by mkb at 7:44 PM on July 28, 2008 [1 favorite]

…the modified community?
Body modifiers.

This is yet another example of how far copyright law has strayed from its original purpose: to allow, for a limited period of time, the original creator of a work to profit from it, before it enters the public domain. Applying this to a tattoo on any of those three points is quite a stretch.
posted by aeschenkarnos at 7:50 PM on July 28, 2008 [1 favorite]

San Quentin state prison could copyright "WHITE POWER" in Olde English font to help the beleaguered California State revenue stream. Heck, the copyright on swastikas alone could pay for the hot lunch program...
posted by Tube at 7:50 PM on July 28, 2008 [2 favorites]

Man, copyright laws are so bogus.
posted by sunshinesky at 7:59 PM on July 28, 2008

I bet I'm sitting pretty here. I did the art (to use the term loosely) for my tattoo, I provided the printout for making the transfer, and it's "my" molecule anyway, dammit.

Of course, the real reason nobody would ever want to copy my tattoo is that nobody else would want to look like such a huge dork. So I don't have to go back and get a little © added.

Which is good because it would look like some kind of weird carbon species or heaven forbid a phosphate group with a typo in it and oh god I'm such a dork *sob*
posted by Quietgal at 8:06 PM on July 28, 2008 [11 favorites]

I don't know, I think there's a lot of interesting points that a more defined copyright law could address...enforcing it is a whole 'nother story however. But some questions that come to mind...

If you have a non-flash, customized tattoo...
Do you have the right to publicize is, blog it, showcase it, profit from it? Are you ethically obligated in any way to mention, give credit, honor, or otherwise compensate the artist and/or tattoo parlor? If so, where do you draw the lines? (Pun intended.) Do you need to seek permission at any stage for the promotion or showing-off of your tattoo? What if you're blatantly profiting from it? What if a third party is profiting from it? What about when others see your unique tattoo and they want the same thing? What do you say when they ask you permission to use it? Can you say you own it, metaphorically or otherwise? What about pictures of your tattoos–especially when other people steal them, and for the purpose of bringing it to another artist and/or copying it?

If you are a tattoo artist...
What about your designs that don't get inked? What about when other artists steal your designs? What about when your clients profit from the work you've done? And when you see your work in places, yet no credit is given? How is this different from images of paintings and photography that are ripped off from websites and the like...and no mention is made?

And don't even get me started about 3rd party questions (which I think are already addressed in some of the links above).

I really wish there was more documentation out there about this. I searched and searched, but nothing really came up. Would love to read more, and hopefully find (flesh out?) some answers to these questions! Any thoughts, anybody?
posted by iamkimiam at 8:12 PM on July 28, 2008

Next up: "The Colour Of Your Eyes: All Part Of Being Human, Or Potential Profit Stream?"
posted by turgid dahlia at 8:22 PM on July 28, 2008 [2 favorites]

I think that Wisegeek site (first link) is a SEO/scraper blog.

I developed my own tattoo and handed it to the artist, and I think copyrighting tattoos is quite frankly ridiculous.
posted by loiseau at 8:46 PM on July 28, 2008

I hope neither Rick Veitch, Black Flag, Jack Kirby's estate, the Nation of Ulysses, nor the Discordians get any ideas about suing me for tattoo copyright infringement.
posted by jtron at 9:03 PM on July 28, 2008

Well, my tattoo looks like a big © symbol. So any of you peeps thinking of adding a little © to your precious unique tatts be warned. I'll lawyer up and sue you into the stone-age.
posted by tim_in_oz at 12:05 AM on July 29, 2008

This would be slightly less ridiculous if there was some way that these companies were profiting directly from the tattoo. However, if this tattoo were on Joe Schmuckface rather than Rasheed Wallace, I'm pretty sure it wouldn't be in a Nike ad. It's featured in ads because it's now part of the body of a prominent athlete, not because of its own merits.

My understanding is that a tattoo artist can copyright flash designs, which makes sense. To be able to copyright something that has now become part of someone's body - therefore potentially prohibiting the piece from being modified, removed, touched up, or photographed - seems to me to be far too invasive. If this case were successful, it would have a chilling effect on tattoo artists. Celebrities in particular would be loathe to get inked for fear that a litigious artist with a lust for some fast cash will come back to haunt them.

Add to that that most non-flash tattoos are heavily collaborative. Most people who aren't just grabbing a Sailor Jerry or a tribal tramp stamp off the wall have ideas and sketches they bring to the artist. Even if they can't draw well themselves, their tattoos are heavily infused with personal ideas and symbolism. The person who bears a a custom piece, it seems, would have a legitimate claim to at least partial authorship.
posted by louche mustachio at 1:20 AM on July 29, 2008

It seems to me that it would be a good idea for the tattoo artist and client sign a document explicitly detailing the copyright, whether it is assigning it to one of them or sharing it in some manner. I would think that a tattoo artist is already going to have you sign something indemnifying them from misspellings and such. Why couldn't they add something like this?
posted by CuJoe at 1:45 AM on July 29, 2008

My nautilus tattoo (in context) was done from a photo that came up when I google-image searched "nautilus." I have no idea who or what owns the photo. And the smaller tattoo is, I believe, flash. I have no idea. I got it when I was 18 because "oooh! I like turtles!"

(No regrets, it just wasn't exactly the most thought out of ideas.)

I would be tempted to sue anyone who got a similar nautilus tattoo for criminal unoriginality bordering on identity theft with a side order of MY IDEA FIRST, DAMNIT.
posted by grapefruitmoon at 4:01 AM on July 29, 2008

I think grapfruitmoon has part of it. I'm working with an artist now designing my tattoo. I don't want her to turn it into a flash and sell to everyone else, because I want it to be unique. I imagine she doesn't want me to turn it into a flash and sell it either, since she's doing the artwork for my idea.

If someone is making money off of a specific tattoo design on them (vs the generic idea of being tattoo'd) then it's conceivable some of the money is owed to the designer of the artwork depending on the contract you have with that person.
posted by garlic at 7:32 AM on July 29, 2008

Once you've given something away, it is no longer solely yours. This concept of rights and ownership being so tied up with profit is ridiculous. If someone is willing to put their art out there, they should be ready to share, profit or no. Perhaps I'm over simplifying, but this seems to be a whole new low in capitalism.
posted by sunshinesky at 9:12 AM on July 29, 2008

posted by sunshinesky Once you've given something away, it is no longer solely yours. This concept of rights and ownership being so tied up with profit is ridiculous. If someone is willing to put their art out there, they should be ready to share, profit or no. Perhaps I'm over simplifying, but this seems to be a whole new low in capitalism.

Interesting stance. So if I find a picture you took and I use it on my website, brochures, and billboards, and I start selling items with your art on them, and my company makes millions of dollars using art you created, according to you I don't owe you anything, because you were "putting your art out there and you should be ready to share" since "Once you've given something away, it is no longer solely yours."
posted by optovox at 11:08 AM on July 29, 2008

Oh my. Well, I think Don Hertzfeldt won't sue me when I'm becoming all famous and my tattoo is featured in a Nike ad.
posted by kolophon at 11:09 AM on July 29, 2008

Yes, optovox, that's what I'm saying. Obviously this is not how the world works, but it is how I feel about my own work.
posted by sunshinesky at 1:00 PM on July 29, 2008

posted by sunshinesky Obviously this is not how the world works, but it is how I feel about my own work.

And because it's your work, you're free to give it away as you see fit. But copyright exists to protect the rights of people who don't want their work used without permission or payment.
posted by optovox at 6:08 PM on July 29, 2008

Point taken, but I still don't believe in copyright.
posted by sunshinesky at 6:56 PM on July 29, 2008

It is interesting to see this on Metafilter!

I am an owner of TattooFinder.com - a website that "sells" tattoo artwork online. Seven years ago Tattoofinder.com essentially jump-started the online tattoo flash industry and in turn started to try and solve this exact problem.

Now, I put "sell" in quotes because of course we don't actually "sell" designs to anyone. We sell a license under the artist's or Tattoofinder.com's copyright.  So yes, like it or not the lawyers are already here and we're part of that. That said, in the 7 years we've been in business we've basically had one mantra when it comes to our licensing business model, and it can be best summarized as "don't be dicks."  Marisa Kakoulas's essay was definitely an influence here. We recognized pretty early on that just saying "ok, take this copyrighted design and you can put it on your body and that's it" would not suffice and ultimately serve to suffocate our industry as a whole. That's just not how tattoos work.

We can't speak for artists that don't work with us, but for those that do we can safely say that you can show up in your Nike commercial with your TattooFinder.com tattoo (recolored, resized, customized, etc.) and get nothing more than a thumbs-up from us. We will never send someone's skin a take-down notice. Most of the artists and studios we work with - leading members of the body modification community - appreciate this the most and it's why they choose sell their artwork through us.

Basically, our business is lawyer-safe tattoo artwork.

I've enjoyed the discussion so far on this topic and will be following it closely. I also invite questions about what we do.
posted by negatendo at 9:29 AM on July 31, 2008 [2 favorites]

The Buddhism Body Art Project
posted by homunculus at 11:46 PM on July 31, 2008

Awesome -- thanks for your take negatendo.
posted by garlic at 7:52 AM on August 1, 2008

Re-Discover the Science Tattoo Emporium
posted by homunculus at 12:44 PM on August 1, 2008

I'm reminded of a particular Roald Dahl short story about a man who learns that the tattoo on his back was done by a very famous artist...
posted by web-goddess at 6:03 PM on August 6, 2008