For an industry that has traditionally seen itself as outside of copyright, the implications of copyright laws may be wide ranging.

A look at several widely available “waiver and release” forms reveals a concern over the risks inherent in the tattoo process—releases for allergic reactions, scarring, color variations, misspellings, and the like—in an effort to reduce medical and other claims from dissatisfied customers. Several releases do include language allowing artists to use photographs of the tattoo, aimed most likely at eliminating “invasion of privacy” claims. Courts could read these photograph releases as assigning limited license to the artist or tattoo parlor in the event that the client brings in original artwork or otherwise has a copyright interest in the final tattoo.

Artists could, of course, potentially face liability for copyright infringement for tattooing copyrighted materials without permission. A client could even face secondary (contributory) liability simply for picking out a copyrighted design and directing an artist to tattoo the image on her body. Tattoo parlor owners could face secondary (vicarious) liability for the work of their artists, regardless of employee or independent contractor classification, based on their financial interest in the artist’s activities.

Not addressing copyright can be expensive, as the law not only provides for actual damages and profits (which might be slight in most cases), but also for statutory damages ranging $200 to $150,000 per infringement and awards of attorney fees (in the United States). For any works of joint authorship between the client and the tattoo artist, artists could be held liable for an accounting of profits for use of the image. Reed apparently asks for this in his complaint against Rasheed Wallace, and one could easily imagine the opposite happening for a successful tattoo design brought in by a client that was turned into commercial flash.

Flash – tattoo flash are the readymade designs for a tattoo. I think that the copyright issues here are relatively straightforward. There has even been copyright cases over tattoo flash or temporary tattoos — Gonzales v. Kid Zone, Ltd., 2001 WL 930791 (N.D.Ill. 15 August 2001); Owens v. Ink Wizard Tattoos, 533 S.E.2d 722 (Georgia 2000); and S.T.R. Industries, Inc. v. Palmer Industries, Inc., 1999 WL 258455 (N.D.Ill. 9 April 1999).

This entry was posted Monday, October 1st, 2007 at 5:37 pm and is filed under Tattoos, copyright. Both comments and pings are currently closed.