Intellectual property (IP) is an umbrella term that identifies intangible rights, including copyright, trade marks and patents. Some forms of IP, such as trade marks, designs and patents, are registrable rights. However, other forms of IP, such as copyright, are not. Typically, IP protects the tangible assets of a business. If you are a tattoo artist, you might wonder what this means for your business. This article explores how you can protect your IP as a tattoo artist.
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Does Copyright Subsist in a Tattoo?
Copyright is a set of economic rights protecting various subjects, including artistic works. As an artist, copyright can attach to many, if not all, of your pieces of work once they are in material form, including work on skin.
This protection extends to tattoo artists who create original artworks which have resulted from skill and effort. However, a few conditions apply, including:
- the tattoo must be original and not generic; and
- copyright cannot exist in headlines, names, single words or images of people’s faces.
Copyright over your tattoo gives you exclusive rights to your design’s:
- use;
- reproduction;
- adaption; and
- performance.
Therefore, other tattoo artists will require your consent if they want to use your original work.
The duration of copyright protection differs from trade marks and other registrable rights that have set registration periods. For example, copyright in original works lasts for the author’s life plus an additional 70 years. However, the duration of copyright in anonymous and pseudonymous works is only 70 years from the year the work is first published.
Who is the Copyright Owner of a Tattoo?
If you have individually designed the tattoo, you will likely own the copyright in your artistic creation. However, this may become a more complex question if you:
- are an employer of, or employed by, a tattoo parlour; or
- entered into a collaboration with another tattoo artist.
It is not uncommon for an employment agreement to include an intellectual property clause detailing who owns the IP created during employment. Whether you are an employer or employee, you should review your agreement and check the intellectual property clause to determine who owns the tattoo designs created as part of the employment.
A creator of IP that attracts copyright protection also attracts moral rights. This includes the right to:
- be appropriately attributed for your work;
- not have your work attributed to someone else; and
- for your work to not be used in such a way as to damage your reputation.
Trade Mark Protection
As a tattoo artist, you may develop a unique branding position. For example, you may provide your tattooing services under a unique and recognisable name or logo. These aspects of your brand are considered part of your IP. Therefore, you can register trade marks in each country where you offer your tattooing services.
Can I Licence My Tattoo Designs to Others?
Suppose you are the owner of the IP in a tattoo. In that case, you can grant permission to another individual or business to use your artwork for a specified time period or purpose, usually in exchange for a monetary payment. This arrangement can be set out in an IP Licence Agreement, detailing the terms of the licence and any limitations you wish to impose on the licensee (i.e. the person being granted permission to use your designs). Licensing your IP is a great way to commercialise the value of your artistic work further.
What if Someone Uses My Tattoo Design Without My Permission?
If you have seen the 2011 movie The Hangover: Part II, you may be familiar with the scene where Mike Tyson’s distinctive facial tattoo is inked onto one of the main character’s faces. An award-winning tattoo artist created Tyson’s tattoo in the USA. The artist sought an injunction preventing the film from being released. Although the US court ruled against the artist on public interest considerations, the presiding judge noted that the protection of the design was entirely appropriate under copyright law. The artist sued the film studio for copyright infringement and settled out of court.
This case tells us that, across the world, artwork in material form, should be afforded copyright protection no matter the canvas.
Key Takeaways
Intellectual property can be one of the most valuable assets of your business. As a tattoo artist, you likely create artistic works as part of the ordinary course of your business, which attracts automatic copyright protection in Australia. Although, you should be careful to identify who the owner of the tattoo design is and whether you have the right to licence the IP to another person to use. You may also consider trade mark protection for your brand name and logo design.
If you have any questions about IP protection, our experienced intellectual property lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
In Australia, copyright exists automatically in a unique expression of work. Therefore, you do not have to apply to obtain this right.
All artwork should be afforded copyright protection regardless of its material form or canvas. Therefore, if someone uses your tattoo design without your permission, you will generally have the right to sue for copyright infringement. However, it is best first to consult a lawyer to determine if this is the right option for you.
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