Take-Two Software, the company behind video game NBA 2K16 has been sued for the unauthorised reproductions of tattoo designs in its video game staring NBA stars LeBron James, Kobe Bryant, Kenyon Martin, DeAndre Jordan and Eric Bledsoe. Solid Oak Sketches argues that the tattoo designs “easily satisfy” a standard for originality and therefore are protected by copyright law. According to the Hollywood Reporter, the tattoos were created by tattoo artists Shawn Rome, Justin Wright and Tommy Ray Cornett, who signed copyright license agreements with Solid Oak Sketches. Take Two failed to obtain a license to reproduce the tattoos in their video game.
Although the question of tattoo copyright has arisen before, most notably when, in 2011, S. Victor Whitmill, the award-winning tattoo artist who created Mike Tyson’s distinctive facial tattoo design filed suit against Warner Brothers for using his tattoo design in the movie “The Hangover II”, these cases always settle and the issue has never reached the courts. So are tattoos protected by copyright law? And what’s the situation here in England?
Historically the tattoo industry was considered outside the law and not subject to the same laws and regulations as other art forms. However, cultural norms have changed dramatically in the last two decades and tattoo culture has now entered the mainstream. Once the preserve of the alternative, lawyers, school teachers and doctors are now as likely to have tattoos as musicians and bikers. An estimated one in five in the UK now has at least one tattoo. David Cameron’s wife has one, much to the tabloid newspaper’s delight.
The rise in popularity of tattoos has seen a parallel increase in interest regarding the intellectual property issues related to them. The application of copyright law to tattoos is a relatively new concept. Although tattooing was only legalised in New York in 1997 and in much of the rest of the United States in the early 2000’s, the lawsuits began almost immediately. Most of the contentious issues haven’t been related to one artist copying the work of another, but as a result of clients, usually celebrities, using the tattoo for commercial gain.
Technically under English law, a tattoo design can be protected as an artistic work under the Copyright, Designs and Patent Act. . 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. So as soon as a custom tattoo has been drawn, either on paper as a drawing or directly on the skin as a tattoo, it has copyright protection, providing, and here’s the clincher, that it’s original. But in a world full of day of the dead imagery and tribal designs what’s original?
Actually, the test isn’t particularly stringent. A work can be original, in the legal sense, without being novel or unique. Just because a rose has been tattooed a million times before, doesn’t mean it can’t be protected by copyright law, providing artist displays an minimal level of creativity – perhaps the petals, stem or shades are presented in a distinctive way. However, you might have a harder time proving your rose meets the required level of originality than say a detailed custom produced piece with several different stylistic elements.
The next obvious question is whether can there ever be an exact copy of a tattoo? Human beings are different shapes and have different skin colouring to one another. Ink and colour take to skin differently from person to person. A custom tattoo design on the back of a white eighteen-year-old girl won’t look the same on the arm of a fifty-year-old black man. If the image is not exactly the same does this mean that there is no violation of copyright? Not so. The two works only need to be substantially similar. So while a copied design might differ owing to skin texture, this difference would, in theory, not present a barrier to a copyright infringement action.
So, if tattoos can be protected under the copyright act, who owns the copyright? Is it the artist? The client? Generally speaking with artwork, the creator of the art is the owner of the copyright. But there are exceptions to this. If work is created in the scope of employment, the employer is the owner of the rights, unless there is an agreement to the contrary. So, depending on the terms of a tattooists employment, this could mean the tattoo studio owner that employs a tattoo artist owns the copyright.
Both of these scenarios present some awkward legal issues. 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? If the copyright owner wanted the image destroyed, could they force a tattoo client to go under the laser? It seems unlikely any 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. For one this would present a conflict with human rights law. But hypothetically speaking, this could be a result of applying general copyright law to tattoos. This is the problem with attempting to shoehorn tattoos into general copyright law – the application of these laws just won’t sit comfortably when applied to art fixed to another human being.
Interestingly, most tattooists do recognize the personal freedom interests of their clients and consider the client to be the owner of the tattoo to do whatever they like with. Tattooists refrain from reusing custom designs on other clients for the same reasons. All the tattoo artists I’ve 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 Coppoletta from the Family Business studio in Islington. “I have no ownership rights over that tattoo, it’s theirs to do whatever they want with”.
Thus, while copying in the industry is not actively encouraged, not many tattooists would ever consider legal action against a client or another tattoo artist. Industry norms that have developed over centuries of tattooing continue to be adhered to, and copying it seems, is just part and parcel of life as a tattoo artist. Those that do copy are unlikely to gain much respect, but they aren’t considered a major threat either. They’re unlikely to go far – those that reach the higher echelons of success are the artists that are innovative, creative and always one step ahead of the rest. Social Media sites like Instagram’s Tracemaster offer aggrieved tattoo artists a place to name and shame those that have copied their designs. “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, to be honest that would be a bigger deterrent than getting sued”.
However, some 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. It seems nobody wants ‘the man’ cashing in on the work of individual artists. Nonetheless the general consensus is that anyone taking on a large corporation for copyright infringement is wasting their time. 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 US, 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.
The tattoo industry, which has traditionally operated outside the realm of copyright law, continues to flourish and grow without this protection. What’s the advantage of bring the law into things now? Given the risk that enforcing an artist’s copyright in a tattoo may interfere with the autonomy and personal freedom of the tattoo client, the introduction of copyright law just doesn’t sit easily. Unlike other creative industries, it simply doesn’t seem necessary in the tattoo industry. 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 copyright owner and the human being to whom the tattoo is fixed.