Tahir's Tips: Ownership & Licencing of Tattoos

Tattoos were once the preserve of hardened bikers and extroverted punks, but they are now part of mainstream culture and this is reflected by their inclusion in many brand marketing materials and catwalk shows. London Fashion Week saw Topshop launch their collection “inspired by school uniforms, English heritage and tattoos” while over in New York Tommy Hilfiger’s show featured model of the moment, Kendall Jenner decorated in star tattoos.

As tattoos become more valuable, people are starting to look closer at the legal issues surrounding them. Some tattoo artists have sought to claim ownership of the copyright in tattoos that they have created. Copyright law was not designed with tattoos in mind. This means that in order to answer questions around ownership and licencing of tattoo imagery one must apply existing legislation – which may lead to ‘odd’ results.

No legal precedent exists to say that current legislation, the Copyright, Designs and Patents Act (‘CDPA’) definitely applies to tattoos – although I think it clearly does – and if it does, the tattooist and the customer may argue the following:

The Tattooist’s Argument

According to the CDPA, the author or creator of an artistic work is also the first owner of any copyright in it; and if that is in the course of employment, the employer owns the copyright. This would mean the tattoo artist or their shop will own the copyright.

The owner of the copyright has an exclusive licence to exploit the copyrighted material. The tattoo artist could therefore claim that their right has been infringed by a magazine advert featuring use of the tattoo or any other commercial use.

A number of tattoo artists have used this argument, mainly in the States, and have achieved out-of-court settlements.

The Customer’s Counter Arguments

The customer may argue that they have the right to exploit the tattoo artwork – either because they are involved in the creative process or because the tattooist is deemed to have given them an implied licence or permission to do so.

A co-author is someone who contributes to the design process. If the customer contributes enough to the design process then they may be regarded as a co-author. Case law in other industries suggests that the customer would have to make a significant contribution – simply directing the tattooist to draw something would probably not be enough.

An implied licence may arise where all the circumstances suggest that the copyright owner expected the person to use his or her copyright material in the way that they are going to use it, even though this was never discussed and has not been written down anywhere. This argument may help people who are known to the tattooist to be celebrities and models because it is to be expected that their image would be used for commercial purposes. However, the argument may fail if use is unexpected – possibly for example if the customer's likeness was unexpectedly used in a video game.

So Who is Right?

Legal opinion is divided and no case authority on the subject exists. Most tattoo artists are unlikely to try and claim copyright infringement and take a relaxed approach around their tattoos.

However, the safest option for those in the fashion, talent and creative industries is to agree in writing on the use of tattoos before the use gains publicity. Celebrities should try and get a release from the tattoo artist allowing them to exploit the tattoo as part of their image before undergoing an inking. And if you are a brand or marketing agency you should obtain a warranty from individuals and agencies stating that they have ownership of intellectual property, including tattoos, before featuring tattoos in your campaigns.

For more information on Industry  member, Tahir  visit his personal partner page on the Sheridans website. To contact him directly, visit The Industry Directory, email [email protected] or telephone 020 7079 0103.