It seems unlikely not to think that “Marks with an indelible design by inserting pigment into punctures in the skin” are covered within the scope of the generous article 10 of the Spanish Copyright Act (grandson of article 2 of the Berna Convention) as a work piece. That is the definition of a tattoo, and that is the topic we are going to discuss about, emphasising in their protection as copyrighted works.
Nonetheless, there are two scenarios that bring tattoo artists certain difficulties at the time of tattooing according to the law. On the one hand, the scope of the right that the artist holds within his/her work, and on the other, the fact that the artist might be infringing previous works protected by copyright and whether they should obtain a license in order to reproduce the tattoo in a client’s skin or not.
- Copyrights upon tattoos-
As we all surely know, the owners of the work (tattoo artists) will be the right holders upon tattoos as long as they fulfil the requirements for protection (these are originality and creativity). Once a work is original and creative, the artist will hold both economic and moral rights.
This is important to know because we might think that as the tattoo is drawn in the skin of a client, or even if the very same client brings up the idea of the tattoo or helps the artist out in the development of the mark, this one might hold certain copyrights upon them.
On the contrary, the protection of the Intellectual Property Act is given to the expression of the idea and to the final result (the tattoo as such) as regulated in article 10 (The subject matter of intellectual property shall comprise all original literary, artistic or scientific productions expressed in any mode or form, whether tangible or intangible, known at present or that may be invented in the future) and article 56.1 (the person who secures ownership of the medium in which the work has been incorporated shall not have any exploitation right in that work by virtue of that ownership alone).
Unfortunately, we do not have any case law in Spain related to tattoos. Although, this situation rises certain questions, which are quite interesting.
For instance, if the person who has the tattoo gets tired of the tattoo and decides to wipe it out or cover it; which right is prioritised? The moral right of the owner of the tattoo on the integrity of the work (article 14.4) against modifications, distortions or alterations in the work? or the right of the tattooed clients upon their personal image with their bodies? There are not answers yet.
Furthermore, we are all now sure that tattoos might be protected by copyrights. But what is their real scope?
There is no doubt about the fact that tattoo artist might sue one of their artist colleagues if they imitate their tattoo (remember that only if the previous tattoo possesses enough creativity). Although, at this point, it is important to mention that even if tattoos are not physically made to be reproduced massively (one client, one piece of work), the exception of the private copy laid down in the Spanish Copyright Act and in the European Directives is not applicable.
The European Court of Justice, in their Judgment of April 14th, 2.014 and even if the case is not related to tattoos, established certain limits to the private copy exception. The Court indicated that this exception is only applicable to those reproductions legally obtained (for instance, through a license) and not to those works illegally obtained (downloaded from internet without permission).
As we mentioned before, there is not any case law in Spain implicating copyrighted tattoo infringements. However, in the international scene, there are numerous cases which might define the sphere in which right holders can act in.
A great example is a recent case, which is still to be resolved, before the Californian Courts. Solid Oak Sketched LLC (one of the most important tattoo studios in the US, in which loads of NBA players are regular clients) sued Take-Two Interactive Interactive (publisher and developer of the NBA2K saga) on the basis of a copyright infringement.
In that case, the plaintiffs manifest that as the NBA2K video game has become more and more realistic, NBA players boots show up with their tattoos (which are incredibly recognisable) but the publisher did not request for permission or tried to get a license to show them around.
Other example was held in the UK, in this case David Beckham, the well-known football player was sued by one of his tattoo artist after the British player made a huge advertising campaign in which the alleged tattoos where clearly visible and there was not previous permission to reproduce them. The parties here came to an agreement and Beckham, finally, paid a huge amount of money to the right holder of the tattoos.
Even though any of the cited cases is resolved by a Court, the pleads contained in both lawsuits invites us to think about how broad the scope of the protection given by Copyright laws to tattoos and how misinformed tattoo artist are in this regard.
- When the artist tattooes an already protected work-
However, what happens on the other side of the coin, when a tattoo artist takes a copyrighted work without prior consent and makes an identical tattoo?
This is quite common in the tattoo industry, most people love to get a tattoo of their favourite characters, trade marks or even the lyrics of a song. In this scenario, tattoo artists will be theoretically infringing copyright if the work is illegally obtained.
The problem is that there is not a copyright culture and therefore, many clients or artists just go into the internet (Google or social networks) and get a photo or an image which is expressly protected under copyright.
You might see the portfolio of many artists in which tattoos of Marvel superheroes, Simpsons characters or famous quotes from books are shown without knowing that they might be infringing those rights.
Independently of that, the lack of debates on how to regulate the framework on the protection upon tattoos just lead into unclear conclusions.
From my point of view, the narrow line that separates imitation from inspiration which is taken in the music industry to asses whether there is an infringement or not might be a good starting point for the tattoo industry at the time of litigating on the basis of copyright.
A tattoo artist inspired by the painting of Salvador Dali “The Persistence of Memory” and tattooes some melting clocks shall be able to avoid obtaining a prior license if his/her work is creative and original enough to receive its own protection as a copyrighted work.
Alejandro García Martínez