Copyright law rarely comes to mind when one thinks of tattoo artists, but perhaps its time has come.
One of my friends is absolutely hooked on those “ink” shows on cable. She watches them all: “L.A. Ink,” “Miami Ink” and “London Ink.” In one episode, she noticed one tattoo artist copying another’s design for a customer and she was wondering if there was some sort of copyright protection for original works of art “fixed in the tangible medium of expression.” This phrase most certainly applies to the original works of art “fixed” onto the body.
But it’s not quite that simple. Marisa Kakoulas outlines some of the problems regarding ink and copyright here. She addresses two key issues, first that tattoos are original works of art that typically begin as drawings then reproduced on the human body. In order to successfully sue for copyright infringement, the design must be substantially similar. “Thus,” she writes, “a custom tattoo on an 18-year old supermodel copied onto a 300-pound couch potato would be in violation of the original work’s copyright protection.”
Christopher Harkins, in his article, “Tatoos and Copyright Infringement: Celebrities, Marketers and Businesses Beware of the Ink” in Reed v. Nike, Inc. when an NBA star Rasheed Wallace’s tattoo, designed by Matthew Reed, was featured prominently in a Nike ad. Reed registered the copyright for the design and sued Nike. As the copyright owner, Reed claimed that under ection 106 of the Copyright Act of 1978, Nike infringed three of his exclusive rights: (1) to reproduce the copyrighted work; (2) to prepare derivative works based on the copyrighted work; and, (3) to distribute copies of the copyrighted work for sale to the public. Harkins says the implications of the Reed case are far-reaching. “Unless the tattooist’s potential intellectual property is resolved, the
celebrities and the companies they sponsor may have no alternative. To their dismay, they might need to digitally remove the tattoo from the commercial hot, or cover up the tattoo, thereby showing less skin.”
While there is all kinds of potential for copyright litigation from a variety of aspects from a fellow artist copying a unique design to an unauthorized reproduction as in the Reed case, Kakoulas suggest that the Body Modification community is not as litigious as say, the Recording Industry Association of America. In her informal survey of the tatto artist community she confirmed what she already knew: that this is a community of creative individuals who pursue their art for its own sake and eschew the complications of lawyers, accountants and excel spreadsheets.
The bottom line is that as the tattoo artist’s work becomes more visible, more unique and more mainstream, it’s not necessarily a bad thing to protect designs that were created with great imagination and executed with great care. Registering a copyright or a trademark for a particularly creative design is not giving into corporate protocols but to prevent oneself from the situation Reed found himself in — seeing his work co-opted by Nike, without even considering that there is an artist behind the ink.
Protecting one’s work via copyright (and copyright attorneys by association) could be seen one way to keep the mutli-nationals away from the industry.