ABSTRACT:Historically the tattoo industry has been considered outside the law and not subject to the same laws and regulations as other art forms. However, in recent years the popularity of tattoos has increased dramatically which has seen a parallel rise in the intellectual property issues related to the industry. While tattoos may be protected under s4 of the Copyright, Designs and Patents Act 19881 (CDPA), the normal conventions will not always apply when the art is fixed on another human being. Important human rights issues arise concerning display and modification. The industry remains sceptical about the use of copyright laws to resolve disputes, preferring to operate outside the realms of traditional law. Although the English courts have yet to rule on the matter, the increased popularity of tattoos and the parallel use of tattoos for commercial gain confirms that copyright issues must be addressed and embraced by the industry.
Section 4 of the CDPA2 protects artistic work including tattoos. However, the normal conventions are not easy to apply when relating to artwork fixed to a human body. Once the preserve of sailors, bikers and convicts, the tattoo industry traditionally operated on the outskirts of society and its laws. However, cultural norms have changed dramatically in the last two decades and tattoo culture has now entered the mainstream.3 This paper seeks to examine the possibilities and peculiarities in enforcing copyright law given the anomalies associated with fixing art to the human body. In completing the research, I interviewed a cross section of tattoo artists throughout England. The research revealed an industry reluctant to use the formal law where possible and a general scepticism about its place in the industry.
Firstly, this article will analyse the reasons that the traditional law has not been used in the past to resolve copyright disputes. The article will then assess whether tattoos meet the criteria to receive protection under section 4 of the CDPA4 . After concluding that they do, the article then will look at who owns the copyright - the tattoo artist, the tattoo client or the tattoo studio owner?
The article will then examine the complex issues that arise when the client uses the tattoo for commercial gain. Although there have been few legal challenges relating to tattoo copyright, these have notably arisen where tattoos have been used as the centrepiece of advertisements or movies without the tattoo artist’s consent. In 2005, tattoo artist Louis Molloy threatened to sue footballer David Beckham if he went ahead with a promotional campaign that focused on the guardian angel that Molloy had designed and tattooed on the footballer‘s back.5 Similarly in the USA, tattoo artist S. Victor Whitmill filed a lawsuit against Warner Brother’s Entertainment6 when a tattoo he had created for boxer Mike Tyson, was copied and depicted on actor Ed Helms' face in the Warner Brothers’ movie "The Hangover Part II".7 Both cases settled out of court. Interestingly, prior to the Joint Motion for Dismissal being filed in Whitmill’s case, U.S. District Judge Catherine D. Perry, allowed the case to go forward, stating that Mr. Whitmill had “a strong likelihood of success in his claim.” 8
Finally, the article will discuss privacy issues and the potential invasion of privacy and human rights infringements that granting copyright to tattoos could result in.
Why law has not been used in the past and self regulation
Several reasons can be identified as to why the traditional law has not been used to enforce copyright in the past, the foremost being the industry’s roots in counterculture and operating outside the law. Instead of copyright law, tattooists have relied on a set of informal social norms9 to govern and mediate relationships and disputes within their industry. Most tattoo artists with whom I spoke expressed scepticism about the law and the use of the judicial system in their asserting rights.10 Although the industry has developed into a legitimate and more respectable profession in recent years, many tattoo artists still consider themselves as ‘outsiders’ and a lingering suspicion of authority and law enforcement remains.
While tattooing has always been legal throughout England, this has not been the case in other jurisdictions, namely, the United States. Tattooing was illegal throughout much of the United States in the later half of the 20th century. This undoubtedly influenced the English perception of the industry, given the strong imprint North American media makes on our society through film and television. Two States in the United States, South Carolina11 and Oklahoma12 only legalised tattooing in 2004 and 2006 respectively.13 Even today, many States subject tattoo parlours to restrictive zoning prohibitions that place them on a par with strip clubs and pawn shops.14 While cases of tattoos and copyright are almost non-existent, tattoos have been brought up in court cases relating to zoning laws. In one case a judge described them as “a barbaric survival, often associated with morbid or abnormal personality”.15 This statement highlights the negative perceptions previously associated with tattoos.
Reference to a recently proposed law in Queensland Australia16 highlights that while tattoos have become more popular, there is still a perception in certain circles of Western society that tattoos are synonymous with criminality. In May 2013, a politician proposed that anyone that wished to work as a tattoo artist should be registered with the government.17 Under the proposed law those wishing to become tattoo artists would need to consent to a National Police Check, attend a police station and have finger and palm prints taken. Police would then be able to enter a tattoo studio at any time without a warrant, inspect and take copies of records and bring in drug and gun sniffing dogs.18 The reasoning behind the proposed law was the politician’s belief that there is a link between tattoo shops and biker gangs who are responsible for a large proportion of money laundering in the area.19
It has been put forward that another reason for the industry’s reluctance to use Intellectual Property (IP) law is because of the lack of a ‘deep pocket’, that is a target defendant with sufficient financial resources to secure a substantial financial settlement or judgment.20 Most tattoo artists operate one tattoo studio, chains are rare, and consequently artists are not particularly wealthy individuals. This idea holds weight – especially as the handful of legal challenges that have been taken in recent years have arisen as a result of tattoos being used for commercial purposes, and have been filed against corporations with significant financial resources. Instances of one tattoo artist filing suit against another for copying are virtually non-existent. Hatcher21 speculates that this deterrent will fade as the industry becomes more mainstream and profitable. In recent years we have seen the emergence of ‘celebrity’ tattoo artists such as Ami James, the star and founder of the popular TV series ‘Miami Ink’. James is now the owner of several tattoo studios around the world, and holds an estimated net worth of $5.1 million.22 Should this trend continue, we might see extremely wealthy tattoo artists who become an attractive target for lawsuits.
Further reluctance to use the formal law to settle dispute comes from the costs associated with formalising the relationship with the customer and the further cost of enforcing it. Although copyright protection is automatic23 and there are no costs associated with obtaining it, enforcement of copyright is an expensive proposition and was cited by a number of tattoo artists as a reason for not using the formal law.24 Fear of being sued could force artists to take out insurance to cover the eventuality and the hiring of solicitors to draw up formal contracts would become necessary to establish who the owner of the work is and what the rights and responsibilities of each party is.Perzanowski 25 notes that in previous decades, physical violence was often used to resolve disputes but as tattooists with art school degrees replaced bikers and ex-convicts, instances of physical violence mostly disappeared. Today, rather than grievous bodily harm, the primary consequence of copying is negative gossip and blacklisting among the tight knit tattoo community. While the tattoo industry was previously a small niche industry with only 300 studios in the UK, it has grown fivefold in the last decade. Like many small industries, gossip is rife and the biggest deterrent to copying was the negative backlash that would sweep through the tattoo community. Most artists describe the industry as extremely close knit and as a result, gossip can have serious professional consequences. An artist that directly copied a custom tattoo, for example, could find him or herself publicly shamed26 . Similarly, in the last couple of years, self-regulation via social media has become a popular method of ‘naming and shaming’ those that have copied custom tattoo designs.
Technology has allowed an international tattoo community to develop and, email, Facebook, and tattoo-specific online discussion boards are increasingly the loci of enforcement efforts. Social media sites like Instagram’s Tracemaster offered aggrieved artists and clients an opportunity to highlight instances to the tattoo community at large. Being named and shamed on social media as an artist that copies work appears to be a bigger deterrent to copying than getting sued.
“I’d be mortified if I copied and the pictures ended up on Tracemaster” said one tattoo artist who prefers to stay anonymous “it would destroy my reputation, and that would worry me more than a getting sued”.27
Are Tattoos Covered by the CDPA?
Suitability for Copyright
Stokes notes that the confining definition of artistic works in section 4(1) of the CDPA 1988 means that the courts must continue to determine whether works outside the traditional art forms are protected by copyright.28 Because so few lawsuits have been brought relating to tattoo copyright, be it because of the industry’s counterculture roots or the lack of ‘deep pocket’, it is difficult to assess whether the courts would consider that tattoos fall under the CDPA 198829 . Firstly, we must look at the justifications for copyright law and whether such justifications can apply to art permanently fixated to the human body.
There are several theories behind copyright law – at least ten according to Kase30 . However, he does state that the right falls under three broad areas- economics, public policy and moral rights.31
In the absence of intellectual property protections such as copyright, it can be argued that some intangible assets would be under-produced, because there would be insufficient incentives to produce them. Thus, our copyright laws are based on our expectation that, by creating these property rights, we will encourage the creation of new artistic and literary works.32
Creative works are often quite expensive to produce, and yet cheap to copy. Without control over copying, Sprigman argues that competition from copyists would force the price of creative works down toward the marginal cost of making a copy.33 The economic argument has a long history in English law and in the 17th century case of Roper v Streeter34 the court ‘recognized investment and expense as justifying a claim to a property right in copyright’. It has been debated whether economic justifications have much relevance when it comes to art.35 Thomas refutes this arguing that:
“though artists would continue to express themselves, as they have done throughout history, under all kinds of economic and social constraints, the publishers, impresarios and galleries needed to bring their own works before the public might be less inclined than under copyright protection to take the financial risk”.36
In the case of tattoo artists, the economic justifications are even more prevalent - there will almost always have been an agreed price with a tattoo client prior to creating the tattoo on his or her skin. This is of particular relevance with custom designed tattoos. The majority of artists canvassed confirmed that they require a client to put down a deposit before they will begin work on a custom design piece.37 Although artists may work on designs for their personal portfolios without being approached by a client, this is usually in anticipation of being paid at a later date.
“This is my livelihood, my profession, I love what I do but I need to get paid”38 stated one artist who prefers to stay anonymous.
Conversely, there is an argument that as copyright law has not existed in the industry before, and yet the industry has continued to flourish, the contention falls at the first hurdle. Lack of copyright has not impeded the production of tattoo art – a contention backed up by the rapid growth of British tattoo parlours in Britain.
Other justifications for copyright law include public policy arguments. Stokes asserts that authors should be encouraged to publish their works to ensure as wide a dissemination of knowledge and culture as possible.39 Can tattoos fall under the category of ‘knowledge and culture’? The early US case of Bleistein v Donaldson Lithographing Co40 established that although tattoos might not be to everyone’s liking, the courts should not exclude them from copyright as a matter of taste. The case involved posters that were made for advertising. Justice Holmes ruling noted that:
“It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits”
The statement highlights that although tattoos might not be to everyone’s liking, the courts should not exclude them from copyright just because they do not consider them as pleasing to the eye.
Nimmer41 has argued that tattoos are not subject to copyright protection in the USA as they fall under the ‘useful article’ doctrine which precludes copyright protection for artistic works which are functional in addition to artistic. Nimmer’s assertions arose in the context of his expert testimony in a dispute that arose when the tattoo artist S. Victor Whitmill, who had tattooed the face of boxing champion Mike Tyson, sued Warner Bros. Entertainment Inc. for depicting the same tattoo on actor Ed Helms' face in the movie "The Hangover Part II". Pictorial, graphic, or sculptural elements incorporated into a useful article are protectable only to the extent they are physically or conceptually separable from the underlying article.42 Mike Tyson’s face, as Nimmer argued, serves a primarily utilitarian, biological function.
A living person’s head serves more functions than any material object ever could. In fact, on the spectrum of utility, a head arguably qualifies as infinitely more of a “useful article,” than inanimate objects such as belt buckles, toy aeroplanes or table lamps.43 Courts have addressed the situation in which there is a copyrightable element that can be separated from a useful article. The US case of Kieselstein-Cord v. Accessories by Pearl, Inc44 established that separability could be either physical or conceptual and copyright protection can be granted to the elements which are not utilitarian. A good example of this concept is a copyrightable picture on a piece of clothing. While the overall shape of the clothing cannot be copyrighted, if the picture standing alone could be, and it is possible to conceptualize it as existing on its own.45 By applying the standard test for separability, Tyson’s tattoo is easily divorced from his skin as a conceptual matter.46
This issue of ‘artistic craftsmanship’ was considered by the English courts in Merlet v Mothercare PLC47 where a cape for a baby was deemed to be a work of craftsmanship only, because the garment itself was not aesthetic. Its purpose was to protect the child from the rigours of the Scottish climate and was not concerned with being a work of art or aesthetically pleasing. Justice Walton set out a two step test;
1) Did the creation of the work involve an exercise of craftsmanship by a person who exercises skill in its manufacture and who takes pride in what he creates
2) Was the work created by an artist such that it has aesthetic appeal?
In the case of tattoo artists, it can be agreed that most will exercise a degree of skill in the creation of a design, particularly with custom pieces. An assertion validated by the lengthy apprenticeships artists complete under the tutelage of already established artists before practicing their trade.48 The second leg of the test is easily satisfied as there is rarely any other motive for tattoos other than aesthetic appeal.
Original Artistic Work
Although tattoos are not specifically included in the CDPA49 , the act does specify that artistic work includes a graphic work, and that graphic work includes any photograph, painting, drawing, diagram, map, chart or plan, and any engraving, etching, lithograph, woodcut or similar work. Therefore, the wide scope of the act does not appear to exclude tattoos. Copyright protection is automatic as soon as there is a record in any form of what has been created and protection lasts for the life of the artist plus an additional seventy years.50 To qualify, a work must exhibit a degree of labour, skill or judgment and should be regarded as original.51
Copying in the tattoo industry is ubiquitous. Many traditional tattoos such as roses, swallows, and daggers, are staples within the tattoo industry. Most tattoo artists can cite several other artists that have inspired their work and in turn have contributed to the development of their personal style.52 The question must be posed whether a tattoo design can ever really be original? The definition of originality in law does not equate with the general English language understanding of the word the English courts have interpreted the concept quite loosely.53 Rahmatian54 states that prior to 2012, the unanimous opinion was that in the UK a work is ‘‘original’’ for copyright purposes if it is the result of its author’s own skill, labour, judgement and effort. This ‘‘pedestrian’’ approach was confirmed in numerous English cases, though the courts have not been entirely consistent in the formulae that they have used. For example, ‘work, skill or expense’ per Lord Pearce in Ladbrooke Ltd vs. William Hill Ltd55 , or ‘knowledge, labour, judgement, literary skill or taste’ per Lord Atkinson in Macmillan.56 Nonetheless, it is evident that some level of skill or judgement is necessary in the production of a work before it is protected by copyright.
Originality was considered in the context of literary works in University of London Press Case57 where J. Peterson stated that:
“The word original does not in this connection mean that the work must be the expression of original or inventive thought. Copyright Acts are not concerned with the originality of ideas, but with the expression of thought. The originality that is required relates to the expression of thought. But the act doesn’t require that the expression must be in an original or novel form, but that the work must not be copied from another work – that it must originate from the author.”
Stokes notes that this case highlights the relationship between a work created and its creator.58 Thus, there must be something in the work that is distinctively the author’s. Sherman59 describes copyright as drawing ‘a line demarcating the acceptable (original) works from those in which the external influences become so great that the effort of the subject is overshadowed or eclipsed’. In the context of tattoos, this would mean that an artist can take, for example, a rose or swallow, reinterpret or embellish the design, and come up with an original copyrightable tattoo. However, there does need to be an element of material alteration or embellishment that suffices to make the totality of the work an original work.60
In March 2012, the European Court of Justice, based on its interpretation of English law, rejected the notion that labour and skill was enough to grant protection to a work and that originality must involve an author’s creative freedom to obtain copyright protection.61 This decision is in line with the United States interpretation of originality where the United States Supreme Court rejected the ‘sweat of the brow’ doctrine62 in the 1991 case Feist Publications v. Rural Telephone Service.63 Nonetheless, Rahmatian64 argues that although the ECJ ruling may lead to a slight adjustment of the UK’s originality definition, it will not lead to fundamental change and the adjustment will not be practically relevant in most cases.
The courts rejected the concept of mechanical copying in The Reject Shop PLC v Manners65 where a slightly enlarged image that was produced using a photocopier was ruled not to be an original artistic work as there was no skill and labour involved which would be required to infer ‘originality of an artistic character.’ Applying this reasoning to tattoos, an image transferred from a flash set66 that the tattoo artist had not designed, that was then traced onto the skin by a tattoo machine, would not qualify because an original work is not contributed. Most traditional tattoo flash was designed for rapid tattooing and used in "street shops", or tattoo shops that handle a large volume of generic tattoos.67 Flash is either drawn by the individual tattooist for display and use in his own studio, or traded and sold among other tattooists. Similarly, an image or drawing provided by the client to the artist and traced or copied exactly would also not qualify as original. The image provided would be protected by copyright with the tattoo only qualifying for protection if it was sufficiently changed.
Of course, in transferring an image to the human skin, some changes to the image will more than likely take place owing to the different dimensions of a human body. Will these changes be sufficient to grant copyright to the tattoo artist? A derivative work is a new, original product that includes aspects of a pre-existing, already copyrighted work. In the United States’ decisions of Durham Industries, Inc. v. Tomy Corp68 and earlier in L. Batlin & Son, Inc. v. Snyder69 the courts held that a derivative work must be original relative to the underlying work on which it is based. Otherwise, it cannot enjoy copyright protection and copying it will not infringe any copyright of the derivative work itself (although copying it may infringe the copyright, if any, of the underlying work on which the derivative work was based). In Entertainment Research Group Inc70 , it was found that:
“Indeed, the courts and commentators seem to agree that making decisions that enable one to reproduce or transform an already existing work into another medium or dimension—though perhaps quite difficult and intricate decisions—is not enough to constitute the contribution of something recognizably his own.”
If the English courts are to follow these rulings, dimensions of the human body, skin tone and muscle structure would not be sufficient to grant copyright.
Is a Tattoo Permanent?
In the case of a literary, musical or dramatic work, copyright will only subsist if it is recorded, written, or otherwise. Interestingly, there is no equivalent requirement for artistic works. Nonetheless, courts have demanded a similar requirement. The courts found in the Australian case of Komesaroff v Mickle & Others71 that works of ‘kinetic art’ (pictures drawn in the sand) lacked sufficient permanence for copyright to subsist because no sand picture was static for any length of time.
The English courts were of a similar opinion in the case of Merchandising Corporation of America v Harpbond,72 where face makeup was denied copyright protection. The case involved the pop singer Adam Ant who had created what he termed his ‘Prince Charming’ style of make-up. This particularly involved the application of make-up to his face to create a blue band between two red bands on one of his cheeks. The defendants had produced a poster which showed the plaintiff made up in this style; the plaintiff then sought an injunction claiming that the application of make-up to his face was a ‘painting’. His application failed, the court stating that:
‘A painting must be on a surface of some kind. The surface upon which the startling make- up was put was Mr Goddard’s face and, if there was a painting, it must be the marks plus Mr Goddard’s face. If the marks are taken off the face there cannot be a painting. A painting is not an idea: it is an object; and paint without a surface is not a painting. Make- up, as such, however, idiosyncratic it may be as an idea cannot possibly be a painting for the purpose of the Copyright Act 1956’.
The decision has been queried since for some of its reasoning. The judge, Lawton LJ held that skin was not able to part of a painting in the same way that canvas is. Paintings, he said, are objects and not ideas. Without the skin, you are left with the paint alone and that is insufficient to be a painting. Pila73 criticises the decision on the basis that paintings are not constituted entirely by their form, but also by the history of their individual production. She views authorship as a shared and evolving expressive tradition; a socially and institutionally situated practice that informs the way in which works are perceived without detracting from their expressive significance.
The court found that Adam Ant’s makeup was not protected by copyright because it did not constitute a ‘painting’ on the basis that: (i) make-up simply did not fit within the meaning of a painting and (ii) any painting must be on a surface, but a face is not a surface. The court’s definition in Harpbond seems restrictive and unjustly narrow, particularly when compared with the wide definition of music in Sawkins v Hyperion.74 Here, the court found that ‘musical work’ can encompass performance elements and musical features that are beyond the traditional notational score. It is also notable that the Adam Ant case was under the 1956 Copyright Act75 and that under the 1988 Act the definition of artistic works is wider - it covers any "graphic work".76
In the USA, copyright specifically protects "original works of authorship" that are fixed in a tangible form of expression. Nimmer, in his expert witness declaration, argued that Tyson’s skin did not qualify as a tangible medium of expression, comparing it to a frosty window pane or wet sand as the tide approaches. However, this seems to contradict his earlier claims that tattoos would “qualify as a work of graphic art, regardless of the medium in which it is designed to be affixed” including “human flesh”.77 Furthermore, Nimmer’s analogy has an obvious flaw. Tyson received his tattoo in 200378 and eight years later, at the time of litigation, the tattoo was still fully intact. Tattoos are applied using indelible ink and are designed to last for a lifetime. They aren’t comparable to drawings in the sand, which will be washed away within 24 hours. While tattoos can be removed using laser treatment, this is also true of books and paintings which can be destroyed and yet adequately fix expression for the purposes of copyright eligibility.79 There is no requirement that an acceptable tangible embodiment needs to survive for any significant period of time.
The author of a work is the person who creates it.80 Typically, when a client walks into a tattoo studio they will 1) either bring their own image 2) pick a tattoo from a flash selection, or 3) request a custom piece from the artist. In the first two scenarios, the authorship will lie with the original artist that created the image brought in or the creator of the original flash image. The third scenario presents some challenges in identifying the author. Bainbridge notes that in terms of some types of works, the author will be self-evident, giving the example of a photographer who takes a photograph.81 However, he also states that an ‘amanuensis taking down diction is not the author of the resulting work’.82 This is of particular significance in the tattoo industry, especially when it comes to custom tattoos, where clients often choose colours, location and size of tattoos in addition to other placement issues that could create joint copyright dependent on the facts. A client may come to the artist with a detailed description of the tattoo image that they would like. In Cala Homes (South) Ltd v Alfred McAlpine Homes East Ltd83 drawings had been made by draughtsmen, but another person had told them what features were to be incorporated in the designs for new houses. In some cases, that information had been given verbally, in others, via sketches. Justice Laddie found that the person giving the instructions was a co-author of the drawings and, hence, joint owner of the copyright. If the courts were to follow Cala Homes, a tattoo client could thus be a joint author, if they contribute sufficiently. However, the decision is questionable and arguably at odds with the expression/idea dichotomy that is that copyright law will not protect ideas but only expression of the idea. The Cala Homes decision was elaborated on in Robin Ray v Classic FM84 where Justice Lightman tempered the broad scope by stating that while the author of a work does not have to exercise penmanship, but something akin to penmanship is required, and that there must be a ‘direct responsibility for what appears on paper’85 to satisfy the test of authorship. Bainbridge86 hypothesises that it is rare to find cases where the person who is not the expresser of the idea is found to have authorship. He notes that Cala Homes was exceptional in that the instructions given were very detailed and specific and made a significant contribution. We can therefore infer that a tattoo client that contributes significantly to the design process will be granted joint authorship with the tattoo artist.
Who Owns The Copyright?
Once it has been established that copyright law can protect tattoos, the question arises as to who owns the copyright. According to the CDPA 198887 the author or creator of the work is also the first owner of any copyright in it. The only exception to this is where the work is made by an employee in the course of his or her employment.88 The act also provides for a situation whereby two or more people are the joint authors and therefore joint owners of copyright.89 This would govern the situation examined above in relation to co-authorship. Thus, the act presents three possible owners of the tattoo;-(1) the tattoo artist that designs the tattoo;- (2) the owner of the tattoo studio that employees the tattoo artist;- (3) the tattoo client, if they collaborated with the artist to create a joint authorship situation or employed the artist to create the tattoo for them.
Bainbridge90 opines that the main difficulty with the ownership provisions of the CDPA concerns the employer/employee relationship. Where a written, theatrical, musical or artistic work, or a film, is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work (subject to any agreement to the contrary). ‘In the course of employment’ is not defined by the Act but in settling disputes the courts have typically had to decide whether the employee was working under 'contract of service'.91 Tattoo artists working in the tattoo studio of a third party would need to establish that he or she works under a 'contract for services' and not as an employee. Thus, the artists’ status as an employee or self-employment will be a key factor in determining whether a tattoo studio owner will own the copyright.
Under s178 ‘employed’ ‘employee’ ‘employment’ and ‘employer’ refer to employment under a contract for services.92 The courts considered the question of ownership of a memorandum in the Canadian case of Beloff v Pressdram Ltd93 where the individual writer was a senior correspondent with a newspaper. The job required a great amount of skill but, as was stated in the case, "…the greater the skill required for an employee's work, the less significant is control in determining whether the employee is under a contract of service." Beloff maintained that she was self-employed and as such owned the copyright in the memorandum. The courts decided that despite her expertise, contracted position and freedom to write for other journals, the work was done as an integral part of the organisation. The newspaper supplied the claimant with office space, a secretary and deductions were made from her pay in terms of PAYE and a pension scheme.
Traditional tattoo studios tend to adopt the independent contractor approach and do not hire artists as employees. Under the typical tattoo studio model, the studio owner will receive a percentage of the proceeds each artist operating in their studio earned. Each day, artists calculate their total income for that day and pay the studio owner a percentage of that total, usually in cash. Written contracts are rare and each artist is responsible for his or her own tax affairs. Artists choose their own hours and set up their own appointments and will usually supply their own tools. Contracts are rarely in place.94 By allowing artists to operate as independent contactors, bureaucratic necessities such as dealing with tax authorities and complying with employment laws are kept to a minimum. In the United Kingdom, the majority of tattoo studios are still ‘cash only’ businesses, negating paper trails which can be used by HMRC to trace tax.
Although there are no specific rulings on the work status of tattoo artists in English case law, a ruling by the Virginia Court of Appeal gives some colour to the issue. The court addressed the issue of tattoo artists as independent contractors in Creative Designs Tattooing Associates, Inc. v. Estate of Earle Lindsey Parrish, III95 where they held that a tattoo artist was an independent contractor and not an employee, in a suit claiming benefits under the Virginia Workers’ Compensation Act. Examining all the facts surrounding the defendant’s work, the court found that he was an independent contractor because he directed his own work; he alone determined how he carried it out; he provided his own tools and supplies; he chose his own work hours; he was paid in a lump sum for his work with no deductions taken; and he alone decided how much to charge his customers. Given that most tattoo studios operate under a similar model, it is unlikely that courts will ever award copyright ownership to a tattoo studio owner. Nonetheless, if a tattoo studio owner employs an artist in a typical employer/employee relationship, the studio owner will have a claim as owner of the copyright.
The Client – Commissioned Works
While it will be in rare instances that the tattoo studio will be considered the employer of an artist, we must consider the relationship between the artist and the client. Is the artist a contractor commissioned by the client and, if so, will the client then own the copyright in the work? Interestingly, strands of this approach can be found in the thinking of tattoo artists. All the tattoo artists I have spoken to, agree that they create the art for their client and do not consider themselves the owner of the copyright. “The client has paid for my design,” says Mo Copoletta from the Family Business studio in Islington. “I have no ownership rights over that tattoo; it’s theirs to do whatever they want with”.96
However this position does not quite map onto the established principals of copyright law. The area was considered in detail by the High Court in Robin Ray v Classic FM97 , where it was held that a contractor providing services owns the intellectual property in the materials created for the client. Mr Ray was a highly respected expert in classical music in England who was commissioned by Classic FM in the UK in 1991 to compile playlists, categorize tracks and rate their popularity under each of the categories. The contract did not deal with intellectual property rights. The results of the work were incorporated into a database that was used to select music on a rotational basis, and prevent overplaying. After the database proved successful, Classic FM proposed to license the database to overseas companies. Ray objected on the basis that he was the author of documents that were incorporated into the database. Justice Lightman98 ruled that in the case of a consultancy, the author retained the copyright in the absence of an express or implied term to the contrary effect.
The decision is a useful guide as to how courts might consider tattoo artists. Following Robin Ray, a tattoo artist that has been commissioned to tattoo a client would retain copyright in that work unless there was an agreement in writing to the contrary.99 As prior written agreements relating to copyright are almost non-existent in the industry, the artist will in almost all situations retain copyright.
However, in some circumstances, Courts may be willing to find that there is an implied license from the contractor to the commissioner so that the commissioner is able to use that work for the purpose for which it was commissioned.100
The idea of an ‘implied license’ has been put forward by Sprigman and Raustiala101 who argue that, although the artist owns the copyright, an implied license exists for the client which allows them to display the tattoo without prior permission from the artist.
An implied license is an unwritten license that permits a party (the licensee) to do something that would normally require the express permission of another party (the licensor). Implied licenses may arise by operation of law from actions by the licensor that lead the licensee to believe that it has the necessary permission. They often arise where the licensee has purchased only a physical formation of some intellectual property belonging to the licensor but has not obtained permission to use the actual intellectual property.
Although, the doctrine does not exist in statutes, courts have recognized the rights on a number of occasions. The Intellectual Property Office confirms that one will only be able to argue that they have an implied license where all the circumstances suggest that the copyright owner expected the person to use his or her copyright material in the way that they are going to use it, even though this was never discussed and has not been written down anywhere.102 A licensor-creator of a work who grants an implied license does not transfer ownership of his copyrighted work to the licensee; he merely allows the licensee to use the work in a particular way.
Bainbridge notes that an implied license may only be used if it is necessary and no more.103 Furthermore, courts will be slow to infer terms of contracts unless it is absolutely necessary to satisfy the commercial realities of the situation.104
In Robin Ray, the Court was not prepared to imply a license into the contract that Classic FM would be entitled to exploit his work overseas. Classic FM was prevented from exploiting their database abroad without the consent of Mr Ray, which would require payment of license fees. On examination of the facts, it is likely that the courts would apply the implied license doctrine to tattoos. In the absence of such a license, the client would infringe the artists copyright every time her tattoo was publicly visible. For obvious reasons this is impractical and defeats the purpose of getting tattoos in the first place – people generally get tattoos to show them off. Of all of the rights granted to copyright holders, enforcement of the right to display publicly presents the greatest likelihood of interfering with a subject’s right to personal autonomy.105
The problem with this implied-license concept, however, is that the intended scope of the license is not obvious. While it would be obvious that a tattoo client is free to walk around and show of the tattoo in public without any interference, is it obvious that they are allowed to augment or destroy the work if they so please? The matter becomes more complicated when the tattoo is used by the client to make money – this is particularly relevant when it comes to celebrities. Like all tattoo clients, high profile clients are free display the tattoo as part of normal daily life and activities without any interference. However, being filmed and photographed is often part of the normal daily life of celebrities. Sprigman and Rusatsiala106 hypothesise that the courts would tend to assume that there is an implied license between the artist and the celebrity client that the client will appear on camera sporadically, and therefore so would the tattoo. These comments came about in relation to the Mike Tyson case;- however, it is notable that Tyson was already famous when he acquired his tattoo, and it was within the realm of probability that he would be photographed and filmed as a routine part of his celebrity lifestyle. What about a situation where a tattoo artist was not aware of the celebrity status of a client? Or if the client was not a celebrity at the time of the tattoo but later gained celebrity status? Does the scope of an implied license cover these eventualities and can the scope expand over time dependent on the particular circumstances of a client? Not only is this unrealistic and superincumbent, but also in the case of facial tattoos such as Mike Tyson’s, it would be nearly impossible.107
While most artists that I spoke to were sceptical about the use of copyright law to settle copying disputes, many artists are more sympathetic to leveraging copyright law if it involved the unauthorized use of designs on merchandise or the use of designs in advertising large corporations. Laterally, a review of the scant number of lawsuits that have been filed relating to tattoo copyright confirms that each of the lawsuits was taken against corporations and none against individual tattoo artists. While Hatcher’s ‘deep pocket’ theory108 may have a role to play, the resounding message from artists was that big business should not profit from the work of an individual artist.
Hatic109 attests that the only instance in which an implied license to display the copyrighted work should not be recognized in the absence of a formal agreement is where the use of the copyrighted tattoo is for a commercial purpose. She refers to the 2005 case in which tattoo artist Matthew Reed from TigerLilly Tattoo and DesignWorks in Portland, USA, filed a lawsuit against Nike and the basketball player Rasheed Wallace to prevent them from featuring the tattoo he had done for Wallace in adverts for Nike basketball shoes. The adverts showcased Wallace’s arm, emblazoned with an “Egyptian-themed family design” with a king, queen, three children, and a stylized sun in the background. Reed had designed the tattoo for Wallace in 1998, when Wallace played with the basketball team Portland Trailblazers. He had charged $450 which, he stated was a small amount, but he expected to benefit from the exposure. When he became aware of the Nike advertisements, he claimed that the advert violated the copyright he held in it. It seems unlikely that a court would extend an implied license to cover the commercial exploitation of the copyrighted tattoo. Following Robin Ray,110 the English Courts would more than likely prevent Wallace from exploiting the tattoo without the consent of Reed, which would require payment of license fees.
The Whitmill vs Warner Bros case111 presented a slightly different set of facts. It wasn’t the use of Mike Tyson’s tattoo in the movie The Hangover Part II that Whitmill objected to, but the fact the tattoo image was copied and depicted on actor Ed Helms' face in the movie and served as a centrepiece of the advertisement for the movie. Tyson had previously appeared in the film’s prequel, The Hangover, and Whitmill had not objected, though the tattoo was not a centrepiece of the movie or its advertisement and was merely consequential to Tyson’s appearance in the film. This ties in with Sprigman and Rusatsiala’s implied license theory112 and their assertion that there will be an understanding between the artist and the celebrity client that the client will appear on camera now and again, and therefore so would the tattoo. It was only when the design was copied and used on a third party that Whitmill felt his copyright had been violated.
Nonetheless the general consensus is that anyone taking on a large corporation for copyright infringement is wasting their time. As with many industries, the perception prevails that copyright law protects big business to the detriment of individual artists. Not many tattoo artists have the time or funds to take on a multi-billion corporation like Warner Brothers. This explains the reason no lawsuit has ever gone to court in the USA, despite the fact several have been filed. Large corporations with huge legal teams can quickly crush an individual tattoo artist with limited time and budget, leaving settlement as the only viable option. It remains to be seen if Judge Perry’s pronouncement that Whitmill had “a strong likelihood of success in his claim”113 will encourage artists to go to trial rather than accepting settlement from the corporations they believe to have stolen their work.
The most obvious problem with applying normal copyright law to art fixed to the human body is the resulting consequences of the ancillary rights associated with it. If anyone other than the customer owns the copyright, they also have the power to control it, would this also give the copyright owner the power to prevent someone from augmenting or destroying the tattoo? Cummings states that there is a generally recognized idea that no law should be construed in a way that leads to unintended or absurd results, and notes that the potential harm to human rights could prove fatal when deciding whether or not to extend copyright protection to tattoos.114
If the copyright owner wanted the image destroyed, could they force a tattoo client to go under the laser? Indeed, in his expert testimony in Whitmill v Warner Bros,115 one of Nimmer’s arguments was that in granting copyright protection to tattoos, the result would be to prevent the destruction of the tattoo, thus preventing a person from having a tattoo removed. He opines that recognizing the validity of copyrighting tattoos would effectively countenance a modern-day form of slavery because a tattooist would retain ultimate control over a drawing that appears on another human. Copyright protection could grant Whitmill control over Tyson’s public displays of the tattoo as well as reproductions of it in photographs or on film and allow Whitmill to prevent Tyson destroying the tattoo or conversely, demand it to be destroyed. Under English law, such a scenario could pose a conflict with Article 4 of the 1998 Human Rights Act116 which provides that no one shall be held in slavery or servitude. There would also be a potential conflict with the basic notions of human dignity and independence.
While it may seem unlikely that a judge would force a client to receive laser treatment because the original artist or copyright owner wanted the tattoo destroyed, or conversely deny the client the right to remove or augment the tattoo should they so wish, a review of case law in other jurisdictions confirms that courts have ordered the removal of tattoos in certain situations, although not related to copyright.
In the United States, federal offenders have received court-ordered tattoo-removal treatment to “help them return to the community”.117 This involves a requirement to have certain gang related tattoos removed as part of their parole. Other examples of court-ordered tattoo-removal treatment can be found in Russian case law where a man was fined for having a swastika tattoo and was ordered to remove it. In ordering the removal in 2009, the Novgorod court cited a rarely applied Russian law that prohibits the public display of Nazi symbols. The judge justified the decision by pointing out in the verdict that the tattoo is on the defendant's right hand and therefore is "visible to people around him".118 Although there does not appear to be any English case law involving court-ordered tattoo-removal, the above decisions suggest that courts will be prepared to order their removal in certain situations despite the possible conflicts with human rights law. This is arguably the problem with attempting to shoehorn tattoos into general copyright law – the application of these laws just won’t necessarily sit comfortably when applied to art fixed to another human being
There is also an argument that forcing an individual to remove or augment a tattoo would interfere with their freedom of expression under Article 10 of the 1998 Human Rights Act.119 The decision to receive and display a tattoo is the choice of an individual much like the decision to wear a particular outfit or hair colour. By preventing an individual from displaying a tattoo, this freedom may be infringed. Although the English courts have not yet addressed the matter, the Arizona Supreme Court have held that tattooing was a constitutionally protected form of free speech in a recent decision concerning a zoning dispute over a tattoo parlour.120
The ruling highlights the tensions between human rights laws and copyright protection and the issues that could arise under English law.
While the tattoo industry traditionally operated outside the parameters of normal society and its laws, the increased popularity in tattoos across all classes of society has witnessed a parallel interest in applying the rules and laws of society at large to this unique art form. As Harkins notes, “a veritable gauntlet of copyright issues may lurk beneath the best of intentions”.121 As the industry continues to grow, the intellectual property issues will need to be addressed.122
It is apparent that tattoos can fall within the scope of CDPA123 and the most likely owner of the artwork will be the tattoo artist. Yet, many tattooists question the advantage of bringing an industry that has traditionally operated outside the realm of copyright law, within its scope, when the industry has continued to flourish and grow without this protection. Furthermore, we have seen that copyright law does not quite map onto the established principals and norms that are adhered to in the industry - namely that the tattoo artist is the owner of the copyright. This, coupled with the risk that enforcing an artist’s copyright in a tattoo may interfere with the autonomy and personal freedom of the tattoo client, certainly leave question marks over the desirability and practicalities of introducing copyright laws to the industry.
While the application of copyright law may not sit as easily with the tattoo industry as with other creative industries, this is not necessarily a forceful enough argument to deny the copyright owner a workable system of enforcing those rights. Furthermore, as the industry becomes more commercial and indeed, profitable, the use of copyright law to resolve disputes seems inevitable. It is likely that the industry will be forced to embrace the use of copyright laws in order to protect itself and to avoid costly legal battles, highlighted by the recent case law in the United states involving high profile celebrities and large corporate organisations. Although it is not the industry norm, requiring, or at least encouraging, written contracts in conjunction with tattoo creation might help to mitigate these conflicts.124
Nonetheless, we can only hope that when tattoo copyright cases finally reach the courts that judges take the industry norms that have developed over centuries into consideration and show sensitivity to the competing interests of both the artist and the human being to whom the tattoo is fixed.125
*Elaine O'Connor holds a BA and an LLB from NUI Galway and an LLM from Trinity College Dublin.
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