Do tattoos have copyright?

Do tattoos have copyright?

All forms of art have copyright, and so it should be in the tattoo world

22 August 2022

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Tattoos are considered as art too, that’s why they need to share the same legal regulation and moral statement as other disciplines.

What do we mean by this?, that if a piece of visual art is backed up by a law that saves it from being plagiarized thus jeopardizing its property, then a tattooist should have the same rights.

According to a survey made on our Instagram accounts, where we asked if tattoos had copyrights, a 52% said yes, a 29% preferred to answer “not all of them”, while the 19% told us they didn’t have.

Although a significant number of people expressed that tattoos have intellectual property, almost half of the respondents seemed to be not too informed about it. Which is understandable, as it’s usually not a popular topic, except for some isolated cases that went viral.

The right answer is YES, tattoos have copyright.

Tattoo artists tipically create their own designs before tattooing, and for that, they belong entirely to its author, even if someone else carries it in their body.

To protect a piece of work under the author’s rights, it must remain in a tangible medium of expression, as the skin is.

Let’s dive in and clear some doubts…

What is intellectual property?

According to The World Intellectual Property Organization (WIPO), this term refers to the creations of our mind, such as inventions, literature, art, symbols, names, and images used for commercial purpose.

This regulation protects the author from being copied and stolen by others.

WIPO splits this property’s right into 2 categories: industry, for patents, brands and industrial designs. And author, as it is in our case.

What does this law include?

First of all, let’s state the basis. Copyright doesn’t demand registration, so there’s no need to register the author’s work.

You should know that these rights can be divided in two blocks. One on work exploitation and the other on moral rights.

In the first case, the artist is entitled to receive an economic retribution every time his work has been distributed, reproduced or intervened.

And in the other case, it allows the author to claim the acknowledgment of his ownership and preservation of its integrity.

Having said that, we’ll get into the delicate tattooist scenario concerning property and possession.

Once the client’s been tattooed, he owns the artist’s piece, which means he has its physical tenure, but not its property, as it always belong to its creator.

This doesn’t convey that the person can’t have the right to wear his new tattoo, in fact, nothing keeps him from showing it to his friends and family, nor share it on the social network. There wouldn’t even be a problem in modelling it in a runway and expose it to cameras. The issue is actually its commercialization.

Let’s go deeper…

It’s not the design’s free display what breaks the law, but the inconvenient it brings to use it with commercial purposes that have the intention to make a profit out of it.

As it could happen —for instance— in a video advertisement where the design explicitly stands out from its carrier; or when the design is placed over a product. Both examples would be violating this law.

Every time there’s a money-return objective, the fairest would be to compensate the intellectual owner, and as a leading measure, it would also be ethical to discuss it with him first.

The same goes to artists who copy from other artists without notifying about it before, and specially if its use meant a financial remuneration.

These cases relate to the second condition of this copyrighting law, in which the creator can request to be recognized and respected as the owner.

What happens when there’s copyright infringement?

Both in physical and technological areas, when this happens, what follows is a civil action to indemnify for the damages caused.

The consequences of the criminal offence depend on the infraction, and it could be sanctioned with fines and, in the worst of the cases, even prison.

Unfortunately, the WIPO doesn't offer private legal advice, so the best choice would be to contact a specialized lawyer who could take the case forward.

When is the author intellectually protected?

The tattoo creator would benefit from being covered under the ‘copyright’ regulation, as long as it can be demonstrated that he fulfils the originality and creativity requirements.

We need to disseminate and inform tattooists about this

Although, as shown above, we can certainly say that tattoo artists are protected under the same legal rights as any other artistic author, there are still a lot of doubts concerning this issue and the possible scenarios.

What if someone decides to remove or cover-up their tattoo?, and to what extent can it be considered a copy when it's a modification of the original?

As we can see, there’s still a lot of work to do, and we can’t have resolutive certainty. From where we’re standing, we feel that the best would be to spread the word the most we can so that every tattoo artist be aware of their rights and demand clarity about how they can protect their art.

We also suggest that if you go through a similar copyright situation, you consult a lawyer right away.

And please, if you know of colleagues who aren’t informed about this, pass them this post!

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