A tattoo, more than just ink…
By Camila Sirianni and Antonella Balbo.
When a person reaches out to a tattoo artist and asks to be tattooed the work of another artist, for instance “The Starry Night” by Vincent Van Gogh, on their skin, are there any intellectual property rights involved in this process?
Are there rights infringed when a person wants a tattoo that was in fact designed by another tattoo artist?
What about avatars in the metaverse or in video games that show tattoos? Or the tattoos that are reproduced in movies or series to portray a famous person?
Copyright over tattoos has been a matter of debate for quite some time now, because indeed the questions previously posed impact on ownership of said rights, unauthorized uses and reparation of damages, exhibiting tattoos through digital media, licensing, image rights, modification of pre-existing tattoos and the right to the integrity of the work.
In Argentina, there is no case law to have set a precedent in the matter. However, it is an interesting subject to look into, given that we are one of the countries with the most tattooed people in the world –surely there were endless queues outside tattoos artists’ shops after winning the World Cup-.
Intellectual Property Law No. 11.723 provides that all artistic creations shall be protected under the copyright regime. Article 1 of the Law states an open-ended list of what is considered protected under this regime, including tattoos as protected works.
With this in mind, we will try to clear up the questions raised, in order to prevent copyright infringements from happening.
Whether or not there is an infringement when reproducing an artwork on someone’s skin, it will depend entirely on the artwork and whether it has entered into the public domain or not.
In view of the example above given, it would be up to Van Gogh -or to his heirs to be precise-, to exercise the protection of the pictorial work and file a claim against the unauthorized use of his painting.
In 1989, Jeffrey B. Sedlik photographed jazz trumpeter Miles Davis and decades later, tattoo artist Kat Von D used that photo to make a tattoo of a friend and shared it on her social media.
This triggered a claim from the photographer, who requested the removal of all content from social media and posts that included the photo and, in addition, he requested compensation for damages.
The district judge ordered to bring the case to trial and a jury will have to decide whether the use falls under the Fair Use doctrine, as well as whether this use denied Sedlik a license.
For the ruling of this case, a very recent case is likely to be influential, where they ruled against Andy Warhol for using a photo of Prince taken by Lynn Goldsmith and making a series of silkscreen prints.
The majority of the U.S. Supreme Court ruled that Lynn Goldsmith’s original works, like those of other photographers, are entitled to copyright protection, even against famous artists.
Tattoo artists enjoy copyright over their creations, and have the rights and faculties to authorize the use of their tattoos or not, and also to demand that their economic and integrity rights are recognized.
Therefore, when a person asks a tattoo artist to reproduce a tattoo made by someone else (original artwork) on their skin, if the artist does not have the authorization to do so, he will infringe the rights over the original work.
As for the tattoos shown in the metaverse avatars, or extreme reality online videogames, or on any other digital media, from a practical point of view and considering that economic rights can only be transferred if the author wishes so, a way to avoid legal risks would be to have an authorization or a license granted by the tattoo artist to make any use of those tattoos.
An example that illustrates this is what happened when the artist James Hayden, who had tattooed Le Bron James and Tristan Thomson, filed legal actions against 2K Games, Inc. for depicting basketball players with the tattoos he had made, in the “NBA 2K” videogame.
As part of their defense, the company claimed that the tattoos in question are small and insignificant in the context of the video game, and that they were not obtaining profits from its use, –as their core business is not tattoos but videogames–. A judge from Ohio ruled that the tattoos are indeed original works, and hence, protected under copyright law. It is now up to a jury to decide whether the company infringed said copyright, by including the tattoos in the video game without Hayden’s consent.
A case that was probably a headache for Cardy B happened due to Gangsta Bitch Music, Vol. 1’ s cover.
In 2016, Cardi B released this album with a controversial cover, in which she was shown infraganti accompanied by a man, with a large tattoo of a tiger fighting with a snake on his back.
Kevin Brophy Jr., who wore his tattoos on his skin, filed a claim and requested $ USD 5 million for damages for the unauthorized use of his tattoos. He argued that people recognized him by this design, so he was humiliated to find his tattoo on Cardi B’s daring cover.
The case was ruled in favor of the famous singer, because the person bearing the tattoo could not submit sufficient evidence as to the direct link or the appropriation of his character for commercial use. The author of the tattoo, on the other hand, would be another story. Because he would be entitled to file actions against Cardi B for the commercial use and the transformation of his work without his consent.
Another debating point is that there are celebrities who feel deeply connected and identified with their tattoos –and are even recognized by the public for their tattoos– to the point that if they were not portrayed with them in movies, biopics, in video games’ avatars, or others, they would not be represented as who they really are. Hence, the need to reproduce the tattoos in order to faithfully portray the character in question.
The wide range of possibilities involving copyright and tattoos is such, that the best thing to do is to act to avoid inconveniences. The most cautious move would be to always avail oneself of the authorization from the author of the work, at the intention of reproducing, recreating, modifying or exhibiting a tattoo through digital media or other. This recommendation is addressed particularly to anyone who wishes to reproduce the tattoo of a high-profile person, such as an athlete, actor, or influencer… although we never know who might want to show our tattoos.
The discussion of the subject matter is exciting and gives rise to a lot of questions, considering that tattoos are a work that rests on a very particular material support, such as people’s skin. It remains to be seen if any similar case to the ones described herein is unleashed in our country, to merit changes in the legislation and make some legal loopholes a bit clearer. Only time will tell…
For further information please contact: csirianni@ojambf.com and/or abalbo@ojambf.com.
