Comments on: “Tattoos are a largely uncharted territory in copyright law”

By: Rachel

Rachel — Sun, 08 Sep 2013 23:33:40 +0000

Tattoos have been around for centuries, having to know if your are infringing on copyright laws would take one less avenue away when it comes to branding, free advertising and freedom of expression. When generally if you get a bad tattoo usually the only person who is going o pay the consequences is you.

By: STALIN

STALIN — Sun, 08 Sep 2013 17:24:04 +0000

Tattoos are their own reward(punishment). And after thirty years it will become a blue splotch. Now with the multicolors, a brown splotch. What a deal.

By: Hugo S. Cunningham

Hugo S. Cunningham — Sat, 07 Sep 2013 15:16:16 +0000

About a century ago, British humorist Saki spun a tale from tattoos and intellectual property law:

“The Background”
http://www.eastoftheweb.com/short-stories/UBooks/Bac.shtml

By: peter

peter — Sat, 07 Sep 2013 12:32:31 +0000

Could the tattooist be considered ‘work for hire’ and the owner of the tattoo be the one with the tattoo?

By: Alan K. henderson

Alan K. henderson — Sat, 07 Sep 2013 07:35:12 +0000

Oops, that’s Shylock v. Bassanio (plaintiff comes first).

By: Alan K. henderson

Alan K. henderson — Sat, 07 Sep 2013 07:34:08 +0000

Just remember the precedent set by Bassanio v. Shylock: plaintiff has claim only to the flesh that the tattoo covers, no more.

By: Ben Challis

Ben Challis — Sat, 07 Sep 2013 07:07:43 +0000

I can only speak as a UK lawyer BUT (and this may not be the answer people want to hear) IF the tattoo is original – and copyright could subsist in the tattoo as an artistic work – then yes, making a copy would be an infringement of the original author’s copyright. Here in the UK we do not have the system if statutory damages that applies in the US – and over here I would imagine the new tattoo artist making the one copy (and the behest of a customer) is a single instance of infringement and its hard to see the sense in the original tattoo artist bringing a legal action. That said, it is possible that the new tattoo artist might NOT exactly copy the design in his/her execution – and just be ‘inspired’ and/or transform the original work and so copyright might not be infringed: there have been a couple of US cases on transformative art, one called Cariou v Prince, and another where the punk band Green Day were taken to court by Los Angeles-based artist and illustrator Derek Seltzer after featuring one of his posters in a video – the band prevailed on the grounds of fair use. Aaron Perzanowski’s comment above also neatly explains the social, reputational, and sometimes economic consequences of copying in the tattoo world.

Cariou v Prince http://www.ca2.uscourts.gov/decisions/isysquery/5da8dc66-179e-4dc0-94cc-09e213bfffe3/1/doc/11-1197_complete_opn.pdf

By: kimsch

kimsch — Fri, 06 Sep 2013 22:13:49 +0000

What about a situation like this: Person A sees a tattoo on Person B that A really likes. A, of course, can not purchase the tattoo from B. A asks B where B got the tattoo. B either doesn’t remember, the shop closed up, or the shop is very far away. A takes a photo of the tattoo to a shop to have that particular tattoo done. Would this be infringement?

By: Veracitor

Veracitor — Fri, 06 Sep 2013 17:40:11 +0000

I like the way Escobedo is quoted at the end of that article reviving the legally-irrelevant but very-appealing-to-the-naive “sweat of the brow” theory (a variation on the Marxist labor theory of value). He deserves a big royalty, he says, because it took him a long time to inflict the tattoo. Of course proper judgement would turn on the originality and popularity of his work… perhaps any moderately-experienced tattoo artist can ink a generic tiger, and the work is only popular because it’s riding the coattails of the athlete who displays it?

By: Aaron Perzanowski

Aaron Perzanowski — Fri, 06 Sep 2013 12:58:50 +0000

Lawsuits in the tattoo industry remain incredibly rare. As I’ve written about in considerable detail here, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2145048, that’s largely because the tattoo industry has developed a set of social norms that discourage and sanction copying, independent of the rules imposed by copyright law.

Those norms emphasize the autonomy of clients and universally discourage the copying of custom tattoo designs. That’s not to say copying doesn’t happen; it does. But it has social, reputational, and sometimes economic consequences.