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01 February 2017

Austria: Tattoos and Copyright

Looking at tattoos from an IP-lawyer’s perspective leads to some interesting questions.

Is a tattoo a work of art?

Tattoos were very simple in the past, showing only well-known graphical symbols such as anchors, hearts or skulls. So the question whether they could be considered to be “art” was not really considered. Now we see very creative and individual works inked on people’s bodies. No doubt, the vast majority of such works could be regarded as pieces of visual art. This year’s roadmap shows some examples of such extraordinary works.

Is a tattoo a copyrightable work?

Why not? Copyright law only asks whether a work is sufficiently individual and to which category (literature, film, applied art, fine art) it applies. The drawing that a tattoo artist makes on paper or on his computer in order to show a draft of the tattoo to his client is simply a traditional drawing. And copyright does not differentiate between the material on which a graphic or painting is made (wood, paper, glass).

Who owns the copyright in a tattoo?

As with any other works of art, the author is the copyright owner. But he may transfer the rights to someone else by way of a contract. Depending on the national legal copyright framework, this could be a full transfer of rights or (only) an exclusive or non-exclusive, comprehensive or limited licence. Therefore, a tattoo artist inking the tattoo may have transferred or granted all or some of his rights in the creation to the owner of the tattoo studio he is working in.

What rights does the customer have in the tattoo inked on his skin?

If a customer contributes to the creative work, he may become a co-author. Otherwise his position is no different to that of any other art buyer, and he has no genuine copyright in “his” or “her” tattoo. If he wants to use the work in a way that infringes the copyright of the artist (or the right holder), he needs a licence.

That is a consequence customers might not be aware of. But could it have a consequence in practical life?

Take the example of a very successful and widely known athlete with a tattoo – let’s say on his neck up to his ears. A TV station wants to have an interview showing this tattoo, a publisher wants to distribute collectible stickers and cards with a portrait of this celebrity on them, a computer game is made with that character identifiable by his famous tattoo. All of these actions might be in conflict with the artist’s copyright.

Is there a way out for the customer?

He can try to argue that his contract with the tattoo artist or the tattoo studio includes an implied licence (ie an unwritten license that covers the intended use). But this is a question of interpretation of the legal relationship between those parties in the specific case, and the scope of such a licence is usually unclear (eg would it also cover commercial ex-ploitation of the tattoo? Is that licence transferable? etc).

What happens if the tattoo is plagiarised?

If the tattoo artist copies the protected work of someone else, he is the plagiariser infringing the author’s rights, and is thus subject to the claims of the author. But this might also have consequences for the customer, because the (implied) licence given by the tattoo artist would not be valid, as nobody can transfer more rights than he has. An extreme consequence would be that the right holder could try to enforce his right of destruction of the counterfeit copy. But in my opinion, it is questionable whether such a claim would be successful, because serious surgery would be required to remove the illegal copy from the body of the customer, which is in clear conflict with the predominant interests of the customer and with human rights.

Is there any recommendation for tattoo artists and their customers?

A lawyer’s recommendation is simple: Conclude a detailed contract, including a proper licence agreement wide enough to cover all potential uses for a lifelong period, and make sure that the artist as the licensor has all rights in the tattoo he created.

"As a rule tattoos are copyright protected works of art with all the severe legal consequences."

author: Guido Kucsko


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