I wouldn’t say I know a lot, but what I can tell you is the precident so far. I am not a lawyer, so this is not legal advice. This is just a bit of current history and a summary into English.
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2005: tattoo artist Louis Malloy threatens to sue David Beckham for using his own tattoo in an ad campaign
Also in 2005, U.K. tattooist Louis Molloy threatened to sue David Beckham if he went ahead with a promotional campaign that focused on a guardian angel tattoo Molloy did for him. With no clear answer on how judges would decide in these cases, the athletes and artists decided to settle outside the courts. [source]
2005: tattoo artist sues Nike, despite wishes of client
Matthew Reed from TigerLilly Tattoo and DesignWorks claims he owns the copyright for the design of the tattoo. Reed’s lawsuit wants the Nike ad featuring Wallace and the tattoo off the air and the Internet, as well as damages.
According to the suit filed last week in U.S. District Court, Wallace, who was then playing for the Portland Trail Blazers, approached Reed in 1998, saying he wanted an Egyptian-themed family design with a king and queen and three children and a stylized sun in the background.
Reed researched the idea and came up with a design. Reed said the $450 charge was a small amount, but he expected to benefit from the exposure.
Wallace has one of the more distinctive tattoos in the NBA. Sports Illustrated for Kids used it in a feature asking readers to match each tattoo with the NBA player who wears it.
But Reed claims he became aware last year of a Nike ad that centers on the tattoo and its creation. He claims the ad violates the copyright he holds to “the Egyptian Family Pencil Drawing.” [source] [note: the case settled out of court later that year]
2011: a tattoo artist sues Warner Brothers
The artist behind Mike Tyson’s famous facial tattoo sued Warner Bros. in federal court Thursday over the tattoo’s design being replicated on Ed Helms’ face in the upcoming film “The Hangover Part II.”
Missouri artist S. Victor Whitmill, who tattooed Tyson’s face in Las Vegas in 2003, brought the suit in St. Louis court seeking to block Warner Bros. from using the tattoo in ads for the film, which is due out in late May.
The suit alleges that Whitmill retained all the rights to the image, including the copyright, even though it was tattooed to the former boxer’s face, the St. Louis Times reported…
“When Mr. Whitmill created the Original Tattoo, Mr. Tyson agreed that Mr. Whitmill would own the artwork and thus, the copyright in the Original Tattoo,” the complaint said. ”Warner Bros. Entertainment, Inc. — without attempting to contact Mr. Whitmill, obtain his permission, or credit his creation — has copied Mr. Whitmill’s Original Tattoo and placed it on the face of another actor … This unauthorized exploitation of the Original Tattoo constitutes copyright infringement.” [source]
[again, the case is settled [out of court]]
Big important thing to note: Everyone has settled out of court. This is such a legal grey area even Warner Brothers doesn’t want to deal with the mess, it seems.
What this means is that as of right now, there do not seem to be any copyright laws or precedents involving tattoos.
However, tattoo flash is copyrightable. Section 102 (a) of the US Copyright Act of 1976 states that “Copyright protection subsists…in original works of authorship fixed in any tangible medium of expression…from which they can be perceived, reproduced, or otherwise communicated…” It goes on to list works of authorship that can be copyrighted, including, “pictorial, graphic, and sculptural works.” A tattoo artist would have to prove three elements for his or her work to be copyrighted – that the tattoo is a “work” under the Act, the work is “original,” and that it is “fixed in any tangible medium of expression.”
HOWEVER AGAIN, in a recent case [Anderson v. City of Hermosa Beach] tattoos were determined, in court, to be protected as expression—so just like someone has the right to draw a political cartoon as protected by the constitution, they have the right to tattoo. This is interesting because free speech can be such a blanket. So if I have the freedom to tattoo (within health code limits), then do I have the freedom to tattoo someone else’s piece on another person? If there is no precedent to say that image is copyrighted, than maybe!
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- If your tattoo is ripped off, there is no legal precedent for you to take action
- If anyone owns the tattoo, it is your artist—not you—since under copyright law they created and profited off of it
- If you do want to take action, it would end up costing a ton of money since it could probably be appealed to the next level of court (again, since there is no precedent)
- If you do succeed in getting a court ruling, it would be a big effing deal legally, but the best you could expect is your artist to be compensated for their profits lost over the original design
Let me make one last important point. The enforcement of these laws also means Disney could go and sue someone for getting a Snow White tattoo or the BBC could come after anyone with a TARDIS. Do we really want to defend a series of laws that favors those who hold patents or copyrights over small artists? And disregards the people wearing the tattoos?
Copyright laws and intellectual property rights never favor the general population. For now the best way to avoid this stuff is to not post your tattoos online. And that sucks. But, until there’s some big national “black list” of tattoo artists that do this shit (or a huge change within the industry of tattooing, akin to a union) then I can’t see a solution.