Do tattoos have copyright?
All forms of art have copyright, and so it should be in the tattoo world
21 November 2022
As with any other art form, tattoos must be considered under the same legal and moral regulation that protects them.
What do we mean by this? If a work of plastic art is protected from being replicated, giving it full ownership of the work, the art of tattooing should be protected in the same way.
According to a survey we carried out on Instagram, in which we asked if a tattoo is copyrighted, 52% thought that it is copyrighted, 29% preferred to say “not all” and 19% thought that it wasn’t.
Although the majority thought that tattoos are intellectual property, the other half seem not to be well-informed about it, which is not surprising, since this subject is not usually widely discussed, unless an important case goes viral.
Actually, tattoos are copyrighted.
Tattoo artists are intellectual creators of the design that they capture on the client's body; therefore, they are artistic pieces that belong entirely to the artist.
For this work to be protected under copyright, it must remain in a tangible medium of expression, in this case, the skin.
Before any further consideration, let's first answer the main question:
What is intellectual property?
According to the World Intellectual Property Organization (WIPO), this term refers to the creations of the mind, that is, to inventions, literary and artistic works, symbols, names, and images used in commerce.
This regulation protects, under the corresponding rights, the author from being copied or duplicated by other people.
The organization divides the property into two categories. On the one hand, industrial property, which includes patents, trademarks and industrial designs and, on the other hand, the one that concerns us: copyright.
What does the copyright law include?
First, we will start by saying that copyright does not require registration, which means that its creator does not need to register their work in any registry.
These rights are divided into two blocks, one related to the exploitation of the work and the other, referring to moral rights.
In the first case, the owner artist is granted the right to receive financial compensation as a result of the exploitation of his work through possible distribution, reproduction, or transformation.
In the second case, it allows the author to claim recognition of the ownership and preserve its integrity.
Once this has been clarified, we’ll talk about a controversial topic: Property and possession.
The client, once tattooed, is the owner of the art piece made by the tattoo artist, which means that they have physical possession of the work, but not its property, since it will always belong to its creator.
This does not mean that the person carrying the design is not entitled to show off their new acquisition. In fact, nothing restricts them from sharing it with their friends and family through photos on social networks, or even if their profession involves public exposure.
This has nothing to do with showing a tattoo in front of the cameras, the issue is related to exclusive and specific marketing rights.
To be more precise, the free exhibition of the design is not considered illegal. It is a violation of the law if it is used for commercial purposes that generate profits.
When audiovisual material is created, such as a television advert, where the leading role of the design embodied in the owner is explicitly shown, or when products are tangible, these are clear cases of copyright violation.
If its use is profit-driven, the intellectual owner must receive remuneration in return, although it would be morally advisable to previously ask for permission.
The same thing happens when an artist copies another artist's design, violating copyrights, or without paying for the use of that design.
On this occasion, we could relate it a little more to the second case of copyright law, in which the creator can claim to be recognized as the owner and respected as such.
What happens when copyright is infringed?
When intellectual property rights are violated, both physically and technologically, a civil lawsuit is filed to indemnify (compensate) the damage caused.
Depending on the infraction, it corresponds to a civil or criminal offence, in case of violating the penal code, fines, and even prison sentences are given.
Unfortunately, the Subdirectorate General for Intellectual Property does not have private legal advice, the best option would be to resort to a specialist lawyer who can take the case forward.
When is considered an intellectual author?
The creator of the artistic work of the tattoo will obtain the benefits of being protected under the regulation of “copyright” as long as they can demonstrate that they meet the requirements of originality and creativity.
More information and dissemination are needed
Although the tattoo culture is protected by the same copyright laws as any other artistic sector, in the tattoo world, this generates several doubts regarding the number of different cases that can be presented.
What would happen if someone decided to remove a tattoo, or get a cover-up? To what extent, a design can be a copy if it undergoes a transformation process?
There are still legal loops and no generic resolution so far. We think that the most convenient thing to help our practice is to promote dissemination so that all tattoo artists are aware of their rights and claim their rights. Anyhow, a lawyer always gives the best advice.
If you have colleagues, and you think they are not informed about it, share this article!