Copyright and trademark are important in law as they protect intellectual property. It helps to protect the value and worth of any work including expression and artistic design. It aims to protect the original expression of ideas.
Commonly, parties also refer to this as “intellectual property right”. In this article, we explore one of the most bizarre things that can have a copyright – tattoos.
Not everyone expects works like tattoos to also have copyrights. However, since a tattoo is also a kind of expression and a type of art, the concept of copyright may be applicable to it.
Section 10 (1) of the Copyright Act mentions “a drawing in ink” as “artistic work.” Under the Copyright Act, as the creator of the tattoo, the tattoo artist would own the copyright.
While there has never been a case in Australia where a copyright was infringed in relation to a tattoo, it is nonetheless important to discuss the topic. There are also some popular examples, such as when the Australian Copyright Agency licenced an Indigenous artwork in 2020.
Art on Paper v/s Art on Human Skin
Even though a tattoo is drawn on human skin, it does not really affect the maintenance of copyright. But this tattoo needs to be an original artwork of the tattoo artist. They cannot imitate or copy it from someone else.
According to the Australian Copyright Agency, for the purposes of a copyright law, the word “original” can be used for any tattoo or other body art that:
- Has resulted after some skill and effort by a person, and
- Is not a mere imitation of some other design
But it is important to note that original work is usually something intricate that involves high level of skill and effort. So, a simple heart-shaped tattoo, the infinity sign or the textual “always” tattoo inspired by Harry Potter cannot count as original, and they cannot be protected by copyright.
Moreover, if a work of body art is to be protected by copyright, the wearer of the tattoo may be required to give his/her consent so that the artist can exercise his/her rights. In some cases, the tattoo wearer makes significant contributions to the design process i.e., more than just giving ideas. In such instances, they may hold joint ownership rights along with the tattoo artist.
Legal Implications to Consider
When can there be an infringement of copyright when discussing tattoos? For example, let’s suppose someone with a tattoo is a part of an advertisement or where the artwork is being commercialised. They would be recording the tattoo and publicising it for commercial purposes.
In such instances, if the person makes any profits from the advertisement or commercial, the tattoo artist may have rights to share the profits. Most cases around copyright infringement and tattoos have involved high-profile celebrities like David Beckham.
If you are looking to make a unique tattoo, or are getting such a tattoo, it is important to be prudent and be mindful of the copyright laws that are applicable.
John Bui is the Principal Solicitor of JB Solicitors – a law firm based in Sydney, Australia. John is a Nationally Accredited family law Mediator and Arbitrator with over 10 years’ experience in family law and commercial litigation.