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But who owns that tattoo?

04 May 2018 - By Angharad O'Flynn

Tattoos are one of the oldest forms of body modification in the world and have a rich history.

The earliest example scientists have of a tattooed person is the European Tyrolean Iceman, Ötzi. His frozen, mostly intact, body was found in a partially melted Alpine glacier in 1991.

A tattoo artist tattooing a hand Roberto Berlim CC-By-NC-ND
Photo: Roberto Berlim

Ötzi is covered in 61 tattoos spread all over his body. They vary in placement, design and size and it is thought that, much like today, his markings were chosen for either cosmetic, therapeutic or symbolic reasons.

Ötzi is around 5,000 years old. At his time of death the Iceman was in his mid-forties. He is a rare specimen as shortly after passing, his body froze in the mountain, preserving it and particularly his skin and tattoos.

Globally, tattoos are now fairly normalised and incredibly popular. They also vary in size from entire multi-coloured body suits detailing family history, to the more popular discreet work that can be easily hidden with symbolic meaning known only to the owner.

A niche medium

Professionally applied tattoos are drawn up and executed by an artist trained to work on skin. Along with an artistic talent, tattooists learn other skills during an apprenticeship – like the study of human anatomy, muscle movement and dermal ink application to create the perfect piece for their client.

It is estimated that around one in five New Zealanders has a tattoo and, much like Ötzi, they’re usually for either decorative, therapeutic or symbolic reasons. There will be people in your office who have tattoos and you might never see them or know about them.

With the increase in popularity of anything with a grey area under IP law, especially something so permanent and artistic, comes an increase in previously unforeseen complications.

Problems

Recently, two cases surrounding the intellectual property rights of tattoos became apparent.

American pro basketballer LeBron James and ex-boxer Mike Tyson were sued by their respective artists over differences over ownership of the tattoos and their recreations in a video game (James) and in a movie (Tyson).

In the LeBron case, a video game company that released a basketball game featuring the player’s full likeness and sport-wear company Nike both digitally replicated his extensive tattoo work. James’ artist says the companies are profiting off his work and he should have been consulted and compensated for the inclusion of his work in both the game and the advert.

In Tyson’s case, the artist sued because he believes that he should have been consulted before the (quite famous) tattoo that resides on Tyson’s face was recreated (physically) for the movie Hangover 2.

The big question in both cases is whether the tattoo artists have any say over how the work is recreated and used, since both clients commissioned and purchased the art from the artist?

These cases are too complex to explore, but it shows that some tattoo artists want intellectual property protection rights over their work after it has been commissioned, purchased and completed, sometimes after years have passed.

Regulation of tattooing here

In Aotearoa, tattooing is not specifically mentioned in the Copyright Act 1994. However, it does fit the ‘artistic work’ interpretation within the Act – should it need to be categorised. Even though the artwork is on a human being, it’s still (to over-simplify) a form of graphic work applied to a canvas.

“Currently, our law is if someone commissions and pays, or agrees to pay, for a work then they become the owner,” says intellectual property lawyer Kate Duckworth.

In the world of tattooing, there is no formal training, in the traditional sense. Tattooing is a trade gained via an apprenticeship. The finer legal points are not usually addressed so, unless a mentor educates, or the apprentice digs through pages of copyright law for themselves, there is little to no education in this area.

“Image ownership wasn’t really part of the conversation at the time [during his apprenticeship],” says Nathan McIntyre, who’s been working as a professional tattoo artist for around eight years.

“It [image replication] was something that I generally tried to avoid in the sense that I would prefer at the time to avoid recreating tattoos already done.

“Though as far as band logos etc, it’s pretty tough to figure where the line is with that, though it’s common practice these days, if someone was after an artist piece by someone who’s not a tattooer, to ask permission for the use of the image.”

The reality of image ownership

Could a tattoo artist use any of the Copyright Act 1994 to sue a client should a tattoo they created and applied be recreated digitally for a medium where profit is likely to be made? “No, unless they’ve reversed the commissioning rule,” says Kate Duckworth simply.

The commissioning rule, as explained on the Copyright Council of New Zealand’s website, currently states that “Apart from dramatic and literary works (except computer programs), copyright ownership vests in the commissioner by default.”

Fairly simple when compared to other countries.

Another issue every tattoo artist faces is clients who don’t turn up for their appointment or change their mind at the last minute after a design has been put together for them. What happens regarding image ownership and recycling unused designs in these situations?

“Sometimes I may use elements of an unused design for another project,” says Nathan.

“Specifically designs that are ubiquitous and don’t carry specific meaning, for example; I may have drawn a lotus or a mandala [for a no-show] that I’m really happy with. If that client doesn’t show up for their appointment there’s a chance I’ll use that design in the future as the aesthetic value of the design isn’t attached to anything personal related to the client. Otherwise it gets binned/deleted.”

To prevent any copyright issues in New Zealand, a reversal of the copyright law needs to be acknowledged and agreed to by both parties to be enforced and, while the artist could retain the rights to their design after its been purchased, they can’t retain the rights to the canvas the design is on – skin. Which opens a whole new bag of worms.

Cultural appropriation

Cultural appropriation has been a hot button topic for many years. However, it is only recently that people have begun vocalising their anger when misrepresentation and aspects of a belief or heritage are disrespected and misrepresented, and Aotearoa is no stranger to the cultural appropriation of Māori culture.

In 2016, copies of Gottfried Lindauer portraits were printed on shower curtains and sold (for just under $100 per curtain) by the Fine Art America website.

The collection of portraits, mostly of Māori elders and leaders, had fallen out of copyright due to age so there was no way to prevent Fine Art America using the artwork due to a lack of cultural and intellectual property rights.

In 2017/2018 a temporary facial tattoo, labelled “Maori Face”, was marketed and sold as part of a Halloween costume online US store called Tinsley Transfers. The temporary tattoo, again, appears to have been based on the full facial mokos on some of the Gottfried Lindauer portraits and, while offensive, can’t be legally pulled from sale, and are still available on the website.

From the misuse of Māori designs to hakas being performed in Italian car adverts and, of course, celebrities with no connection to the country or its heritage getting traditional artwork usually reserved for highly respected members in the Māori community, cultural appropriation is something many tattoo artists try to educate themselves, and their clients about.

“I think cultural appropriation is a fine line to navigate,” says Nathan McIntyre.

“Obviously, there are many symbols from different cultures and faiths that are widely worn for the concepts that they represent and I think that, done with taste and respect for the origin, they can be okay… When it comes to moko of any kind, I personally prefer to leave it to those fluent in the visual language that is moko but, as far as I’m aware, there is a cultural precedent for [it] in the form of kirituhi [tattooing].”

There currently aren’t any laws, either domestic or international, that protect cultural heritage and its use. However, the problem of cultural appropriation has been raised with the United Nations and it is considering introducing laws to safeguard culture and heritage.

“This topic of using the resources of other cultures has been around for a long time and there is talk that it does need its own protection because no intellectual property law covers it, and neither does any other law. There’s no law against being offensive, per se,” says Kate Duckworth.

What should clients and artists do to protect their rights?

“If you’re the client, you probably want to own the copyright and use it again. If you’re the artist you probably want to own it. If you’re the client; the default under New Zealand law is you own the copyright work and you can do what you want,” Kate Duckworth says.

The only legally binding option for the artist to retain copyright is including a clause in their consent forms that reverse the copyright rule – which is almost unheard of.

“[My] consent form essentially informs the client that they are responsible for signing off on the design and are aware of potential risks involved with getting the tattoo. I’m not sure if copyright falls under that responsibility for the design,” says Nathan McIntyre.

Consent forms addresses health and safety concerns due to the OSH issues that can accompany getting your skin pierced anywhere from 50 to 2,000 times per minute with multiple needles, for hours at a time. They rarely contain anything specifically referencing copyright law and reversal of the copyright rule in the artist’s favour.

A reversal clause could potentially impact a tattooist’s clientele. Imposing a clause saying they retain the right to any image they put on a client’s skin is an ultimatum that most people will not feel comfortable with.

“As a tattoo artist, I guess you have to think about that when you’re designing something and putting it on someone, are you happy for that [design] to be theirs?” says Kate.

After sharing copyright information with Nathan, I asked him if he would consider reversing the copyright rule to protect his images, “I think I would consider it but would need more professional advice involved with the wording of something like that.”

Last updated on the 4th May 2018