Tattoos are exploding in popularity, and it’s an exciting time for artists to think about launching or growing their studio. Aside from the legal mechanics required to start a business, an area that tattooists can easily overlook is copyright. Below, we set out when copyright protects tattoos and how to protect your artists and studio.
Does Copyright Protect Tattoos?
The Copyright Act 1968 (Cth) governs copyright in Australia. Copyright is automatic and exists for 70 years after the author’s death. When determining whether copyright subsists in a work, you should ask:
- Is the work the type that attracts copyright? (e.g. literary, dramatic, musical and artistic works).
- Is it recorded in a material form? (i.e. have you recorded the work in a physical way, such as writing it down or painting on a canvas).
- Is the work original?
- Is the work substantial enough to be protected?
Answering yes to these questions provides you with a good (but not definite) indication that copyright subsists in the work.
In the case of tattoos, copyright is likely to subsist as the work is artistic and recorded on another human. Provided the artist is an Australian citizen or resides in Australia, and they put in the requisite skill, expertise and labour, the law will consider the tattoo to be original and substantial enough to attract protection.
As a tattoo studio owner or tattooist, you will retain the rights to many of the artistic works you (or your studio creates) if you designed those works in-house. Your rights will cover:
- Adaptation; and
Other tattooists will require your consent if they want to manipulate your original work. Also, remember that you will retain the rights to your employee’s creations if their employment contract assigns intellectual property (‘IP’) rights to you.
The law will likely provide your clients with an implied licence to go about their business without infringing your copyright. However, this implied licence will not extend to where they use your tattoo for some commercial gain or market it for promotion. As has been found in the US, this can infringe the copyright holder’s rights if there is no formal licence or assignment to use the copyrighted material.
A Quick Word About Moral Rights
Moral rights are separate from copyright and exist for the same duration. Typically, however, moral rights are not given away and remain the right of the author in the artistic work.
There are three moral rights:
- Right against false attribution; and
In a nutshell, these rights mean that a person using the tattoo for anything their implied licence doesn’t cover must identify the author of the work, and make sure that they’re not doing anything, in relation to the work, which is prejudicial to your artists.
The takeaway here is to ensure that irrespective of who owns the copyright, your artists will likely retain their moral rights and these can be infringed by tattoos being used inappropriately.
How Do You Protect Your Artists and Your Business?
Protecting your business and your artists depends on who owns your IP. Ensure that you have a ready set of IP employment agreements and assignment agreements for your staff and customers.
1. Clear Employment Agreements
IP is a tattoo studio’s tradable asset and is just as important to protect as taking out insurance on the business’ equipment.
Decide whether you want the business to retain the copyright in their works or whether you are assigning those rights back to the employee. Your employment agreements can document this relationship so that everyone knows where they stand. ‘Assigning’ means transferring the IP rights. In this case, the employee can assign those rights to you or retain them (which means there is no assignment).
Ordinarily, contractors’ agreements will state they maintain the IP to their art. It’s important to understand this as a studio because it will impact your ability to reproduce or market the work without first seeking authorisation.
2. IP Assignment Agreements
An employer can use an IP assignment agreements in a variety of situations. It may be the case that you have your customers sign up to terms and conditions that express what happens to the IP and therefore the copyright in the tattoo works.
If not, this is something to consider for your business as it can significantly simplify the process. You can adopt an IP assignment agreement for tattoos created in the studio and that the artists have designed. These agreements can handle situations where the customer has set the parameters of the design brief but ultimately left the work to the artist to turn that into their tattoo.
What Happens if the Customer Helps Design?
In these situations, don’t be surprised if you are presented with an IP assignment agreement maintaining the customer’s rights in the artwork. Alternatively, they might give you an agreement that considers co-ownership.
Are you considering opening a tattoo business? Need further information about tattoo copyright? Get in touch with our intellectual property lawyers today on 1300 544 755.
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