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).

Full story from the Mirror.

Someone mentioned after the conference that a gentleman was asked by Disney to remove some Disney-related ink after visiting the theme park. I haven’t found a link to the story yet, but the Disney Tattoo Guy has tons of Disney related ink. His site is at http://www.disneytattooguy.com/

My slides from my presentation last week exploring this question, up on the Gikii 2 website, got boing boinged. So here is a post about some of the issues that come up, including those that came up in the BoingBoing forum.

Tattoos and “works for hire”

US copyright law divides “works for hire” into two categories:

(1)works made within an employer/employee relationship, and
(2)works “specially ordered or commissioned for use as[,]” among others, “a contribution to a collective work”.
See 17 U.S.C. 101 “work made for hire”

Works for hire uniquely vest with the employer or commissioner of the work rather than with the creator—the creator has no copyright interest.

Out of the listed categories, I think only “a contribution to a collective work” argument would work for tattoos. Something like doing one of Enigma’s puzzle pieces. Or perhaps full body work. Arguments could also be made that The other categories are things like a motion picture, or for teaching.

Even if you could fit a tattoo as a “work for hire” either as a collective work or under one of the other categories, one of the requirements is that you written instrument saying that it is a “work for hire”. As tattoo artists don’t (AFAIK) routinely deal with copyright, they aren’t likely to have had a written instrument covering this.

As to employer/employee relationship, this is highly unlikely. In CCNV v Reid, the US Supreme Court listed some factors for finding this relationship, including:

Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.
490 U.S. 730, 751-52

I think based on the typical scenario of getting a tattoo that it is highly unlikely that there would be an employer/employee relationship here.

Tattoo parlour owner as copyright holder

Speaking of the above factors, I should point out that if the tattoo artist was creating copyrighted material, that material could actually be owned by the parlour under the same set of factors outlined above for finding an employer/employee relationship. If an artist is an employee, the works she or he creates in their scope of employment would be the employer’s copyright.

Reed v. Wallace

The case that I use to illustrate some of the problems is Matthew Reed v. Nike, Inc., Rasheed Wallace, and Weiden + Kennedy. The complaint is available here, and the cite is Case No: CV05-198 (D. Ore. 10 February 2005). It settled out of court.

The complaint was over the use of the tattoo in a Nike commercial. Wallace had Reed draw up, and tattoo on him, an Egyptian family tattoo on his upper arm. Fast forward a few years, and the tattoo is centre stage in a Nike commercial. Using computer animation, they erased the tattoo from his arm. As Wallace was explaining the meaning of the tattoo, it was slowly being filled in. All in all a neat commercial.

Reed argues in the complaint for what I see as an implied licence for most typical uses of a tattoo — including in this case display of the tattoo at NBA games. However, predominately featuring the work in a commercial was beyond what Reed felt was within the scope of any typical use and sued.

Note that because US citizens must register their works before the infringement occurs to ask for statutory damages, he doesn’t ask for these in the complaint. He did have to register to sue — it’s a requirement in the United States.

Moral rights

As mentioned by Danny, one of the areas I do talk about is possible conflicts between moral rights and tattoos. Especially interesting is the right to object to derogatory treatment — could getting a coverup tattoo, or touching up a bad tat be derogatory treatment? Could the original author object to you doing this?

As Caroline Wilson pointed out after the talk, what happens if you gain weight or don’t take care of the tat? Is this objectionable derogatory treatment?

Also, what about the right of attribution — to be named the author of the work? One wrinkle would be that some tattoos are collected into museums by preserving the skin after death. Yokohama Tattoo Museum and the Tokyo Medical School are rumoured to have collections of actual tattooed skin.

I’ll be posting more about the talk and the paper throughout the week.