Tattoos are not just personal to the body of the person on which they are inscribed—a tattooer’s work is reflective of the artist, their interests and personality, and where they were in the arc of their career at the moment they laid the tip of the tattoo gun to a client’s skin.
Just as a well-trained eye can instantly recognize the history of a piece of classic artwork, every great tattoo artist’s work can be identified by its countless nuances. But tattoos don’t just have emotional value: they have a financial one as well. An hour of a tattoo artist’s time starts at $100 per hour, and renowned artists charge several times that.
But just as a photographer may charge for their time, but still require further compensation for reproducing their artwork, the same is true for tattooers as well. It’s one thing for your work to be seen on the street or in unpaid social media postings. But if a client of yours is part of an endorsement campaign that prominently features your work, then what?
Just because your artwork walks away at the end of the day doesn’t mean that you don’t have the same rights to fair compensation for reproduction as any other artist.
If you are a tattoo artist seeking to protect your financial interest in your work, the Law Office of Michael O’Brien can help. For more information, give us a call at 916-760-8265, or send us a message using our contact form.
But, you may still be wondering about what legal rights tattoo artists have to protect their work. That’s a complicated question with an answer that isn’t entirely clear yet.
The legal ramifications of tattoos being featured in media have only come to light in the last decade or so.
While tattoos have been around for thousands of years, it is only recently that tattoo ‘culture’ has come into its own, with prominent artists achieving name recognition, years-long waiting lists, and even reality TV shows. As a consequence, tattoo artists have started to more closely consider the rights they have to protect their work when it’s depicted in media.
Way back in 2005, Oregon tattoo artist Matthew Reed sued Nike for an ad which featured a tattoo he had created for Rasheed Wallace, then a player for the Portland Trail Blazers. Reed likely had a strong case, as the ad focused on Wallace’s tattoos, and actually showed them being digitally ‘drawn’ onto his arms. Reed and Nike settled.
In 2011, tattoo artist S. Victor Whitmill, who created Mike Tyson’s well-known facial tattoo, sued Warner Bros. for copyright infringement. Tyson had made an appearance in The Hangover, but this wasn’t the cause for the suit. The issue was that in the film’s sequel, another character was prominently shown in the film and its advertisements with a facial tattoo identical to Tyson’s. A few months before filing suit, Whitmill had registered a copyright claim for the work, with his claim bolstered by a release Tyson signed in 2003, when the tattoo was done, which stated “that all artwork, sketches and drawings related to [his] tattoo and any photographs of [his] tattoo are property of Paradox-Studio of Dermagraphics.” Warner Bros. chose to settle with Whitmill rather than take the case to trial.
In 2012, tattoo artist Stephen Allen sued Electronic Arts after he discovered that the cover of the 2004 video game NFL Street featured Miami Dolphins player Ricky Williams on its cover, complete with a tattoo Allen had inscribed on Williams’ arm. Allen later had the case dismissed, but the lawsuit prompted the NFL Players Association to advise players to get copyright waivers from their tattoo artists before having work done. The first player to do so was former 49ers quarterback Colin Kaepernick, who obtained permission to have his tattoos depicted in Madden 15. He was the only player to have his tattoos shown in the game.
The same year Allen sued EA, artist Christopher Escobedo sued THQ Inc. The video game studio had released two video games featuring the UFC martial artist Carlos Condit, complete with a lion tattoo Escobedo had inked on the skin of Condit. While THQ declared bankruptcy shortly thereafter, a bankruptcy court awarded $22,500 to Escobedo. The artist appealed the amount, and the two parties later reached a settlement.
In 2016, Solid Oak Sketches filed a lawsuit against Take-Two Interactive Software, claiming that the video game maker committed copyright infringement by featuring true-to-life tattoos on the electronic likenesses of NBA stars LeBron James, Kobe Bryant, and Eric Bledsoe.
Solid Oak’s claim was undermined by the fact that they had only filed a copyright registration in 2015, after the tattoos had appeared in NBA 2K14. However, the tattoos were again featured after the copyright filing, in the follow-up NBA 2K16. This case is still ongoing. In August of 2017, Take-Two asked that the case be dismissed on the basis of fair use.
As noted above, legal precedents for copyright protection of tattoos are still being established. However, it’s becoming clear that tattoo artists have at least some legal rights to the depiction of their work in still media, film, and video games. While most tattoo artists likely won’t run into an issue where this is a concern, if you frequently perform work for models, athletes, or actors, then you likely have cause for ensuring copyright protection of your work.
If you are a tattoo artist looking to protect your copyright claims on your work, here are three pieces of advice.
- For every piece of tattoo artwork you wish to protect, have a version of it prepared on paper that can be scanned or saved in a computerized format. It may be that you like to work in the moment and allow inspiration to strike you, but you at least need to photograph your work in detail, if you aren’t comfortable preparing a preliminary sketch.
- File a copyright application for your artwork within a few weeks of being paid for the work, in order to obtain maximum financial remedies in the case of copyright infringement.
- Prepare an enforcement budget to protect your work. Lawyers aren’t free. It may be appropriate for you to take out an insurance policy to help cover the cost of litigation down the line.
For more information on how you can protect your financial interest in your tattoo work, contact the Law Office of Michael O’Brien by calling 916-760-8265, or sending us a message through our site’s contact form.