Last month we blogged about a trade mark dispute, which saw the Leicester-based band formerly known as Easy Life change their name to avoid a trade mark infringement claim from Easy Group. While the effort and expense of rebranding may be significant, the change also has a significant impact on several fans who were encouraged to get the band name tattooed on their bodies. Many fans have vowed not to change their tattoos, and there are only a handful of examples of courts in other countries ordering the removal of tattoos – so it would be incredibly unlikely that the music fans would be forced to change their Easy Life tattoos. This does however act as a reminder of the IP considerations involved in tattoos, an issue that has been considered in several US copyright disputes this year. So, what are the IP risks of getting inked?
Who owns the copyright in your tattoo?
While there have been no reported UK cases on the protection of tattoo artwork, it is widely accepted that tattoos can be protected under copyright law as an artistic work, subject to the condition that they are sufficiently original. The originality standard in UK copyright is a low bar, meaning that most tattoo artworks are likely to be protected, although tattooed names or short phrases inked in standard fonts are unlikely to be protected. By way of example of a tattoo falling below the threshold for protection, following a US copyright victory Ed Sheran’s songwriting collaborator Amy Wadge had the words of the trial verdict that their song was “independently created” tattooed on her arm. While this is a fantastic IP-themed tattoo, it is insufficiently original to be protected under copyright law and it would not be infringing for others to copy the tattoo and have those words inked on their own bodies.
A more difficult issue is the ownership of original tattoo artwork – does the copyright belong to the tattooist or the client? In the absence of a formal employment relationship or agreement to the contrary, the first owner of a copyright artwork will be the artist. That may be the client if they want their own artwork inked or, more commonly, the tattooist who designs and draws a custom tattoo to the client’s requirements. Where an artwork has been specifically commissioned a UK court may however infer that the artist is under an implied obligation to assign ownership to the commissioner. That may mean that where a client has approached a tattoo artist with an idea for a specific custom tattoo, there is an implied agreement that the client should own the copyright in the resulting artwork. Given the uncertainty over copyright ownership it would be a sensible practical step for tattooists and their clients to enter into an agreement before the session to assign or confirm the ultimate ownership of copyright in the artwork.
What happens if your tattoo is a copy of an existing artwork?
Anyone looking to get a tattoo which is a reproduction of an existing painting or artwork protected by copyright should obtain the permission of the copyright holder first. It would also be prudent for the tattooist to also confirm such permission has been granted before inking. While the issue has not yet been litigated in the UK, in the absence of such permission, there is unlikely to be a defence to copyright infringement in UK law.
In the US, there have been recent attempts to argue that their fair use defence would permit a tattoo artist to reproduce an artwork in tattoo form without permission and without infringing US copyright. In 2021 photographer Jeff Sedlik sued celebrity tattoo artist Katherine von Drachenberg, claiming that a tattoo of Miles Davis she inked on a client infringed copyright in his iconic 1989 photograph of the musician. The tattoo artist in this case has claimed that her tattoo is a permissible and transformative fair use of the original photograph, and that permission was not required to create the tattoo. While the case is ongoing, it seems likely that after the recent US Supreme Court case of Andy Warhol Foundation v Goldsmith, the copying of the photo without permission or paying a licence fee to Sedlik would infringe.
(Left: Jeff Sedlik’s photograph; right Katherine von Drachenberg’s tattoo)
Can your tattoo be reproduced in other media without permission?
Even if the tattoo artist retains the copyright in a tattoo inked on your skin, it is likely that there will be an implied permission from them to allow the tattoo to be incidentally reproduced in photographs or videos of you. As discussed in our previous post about the US copyright dispute between video game publisher Take-Two and tattoo artist Catherine Alexander, it is less certain whether any implied permission to reproduce a tattoo would extend to the commercial exploitation of your likeness or the creation of a digital likeness for use in a video game.
In some instances in the US third parties will be able to rely on the fair use defence to allow them to reproduce the tattoo in other media such as films or TV series without permission – for example, in the recent Cramer v Netflix dispute, Netflix was permitted to briefly show the artist’s tattoo in the context of a documentary series without permission or payment.
Can you tattoo a brand’s logo?
It is not uncommon for individuals to have brand names or logos tattooed on their body, often done without the permission of the relevant brand. Displaying such tattoos is unlikely to infringe the trade mark rights of the relevant brand owner. This is because trade mark infringement requires the defendant to use a trade mark ‘in the course of trade’ and that use of a mark outside commercial activity will not infringe.
One interesting exception, where the use of brand tattoos may be in the course of trade, is the practice of ‘skinvertising’, where individuals sell advertising space on their skin for brands to tattoo logos. The practice reached its peak in the mid-2000s where dot-com companies engaged in skinvertising as marketing stunts – an early precursor to modern social media influencer marketing. A recent UK example of skinvertising was a promotion earlier this year by the Au Vodka brand, which offered £250 to customers to have a bottle of their branded vodka tattooed on their bodies.
So, should you get inked?
As discussed above, there are several IP considerations to keep in mind when getting tattooed, and it would be sensible for both tattooists and customers to agree IP issues in advance of going under the needle. Of course, intellectual property risks are not the only legal concerns that should be considered before getting inked. For example, you may want to consider whether your employer’s appearance code permits visible tattoos – as noted by our employment team, discrimination against employees and job applicants on grounds of having tattoos or piercings is not covered directly by UK equality legislation. Having just checked our own permissive firm HR policies, it might be time for one of the authors of this blog post to come clean about their secret Lewis Silkin logo tattoo…