Tattoo Law: Marisa DiMattia

A Stolen Tattoo Could Get You Sued: Let’s say you’re clicking through tattoo photos online, trying to get an idea for some body art of your own.

You come across a gorgeous piece that you think is just perfect so you hit print and take it to your local tattoo artist to get it needled. When it’s done, you love how it looks, just like the one you printed out, and you upload pictures of the tattoo to show it off. You know it’s going get you a lot of attention, but did you also know that it may get you sued?

What’s the big deal of stealing a tattoo design? Isn’t imitation a form of flattery?

The answer is that it can be a big deal as certain imitation is illegal under US Copyright Law—[link: http://www.copyright.gov/]. Those with custom tattoo art may not call it flattery, they may call it theft, and that tattoo copy may end up costing more than you thought.

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What exactly is copyright?

Copyright is basically protection given to creators of an original work, like a movie, painting, song or book. That protection gives the creator rights to reproduce, perform or display, and distribute the work exclusively or authorize others to do so. These rights let the creator enjoy the benefits of the work, which usually means cash.

The philosophy behind copyright, based on the US Constitution’s Copyright Clause, is that people will invest more time, energy, and even money in developing new and original works if they can profit from them or not worry about their work being used for purposes they don’t support.

This philosophy gets debated a lot – particularly when big companies sue people for illegally file sharing music or movies. It’s a hot topic and it’s blogged about more than Paris Hilton’s latest fling, so I won’t go into it. What needs explaining is how this all relates to tattoos.

Does a custom tattoo design really have copyright protection?

The simple answer: Yes, an original tattoo design is a copyrightable work. Originality is key. Still, I get a lot of people asking me how any tattoo artist has a copyright for a design of an old school dagger or Japanese-inspired dragon – tattoo motifs that have been around forever. But keep in mind the requirement is that the work be original not unique. This means that a tattoo artist can have copyright protection for a Japanese dragon if the design is his or her own expression of that motif.

The best example is in the case of Gonzales v. Kid Zone, Ltd. and Transfer Technologies, Inc. (2001), where David Gonzales, a California artist, sued Kid Zone, Ltd. and Transfer Technologies, Inc., for stealing his copyright protected artwork in the creation and sale of stick-on tattoos. The defendants argued that the themes used for the tattoos were eagles, the Virgin Mary, and national flags. How could these concepts belong to a single person? The court said that copyright protects specific expression of concepts and ideas, even common ones, and found in favor of Gonzales. Gonzales didn’t get rich but he did receive statutory damages for $3,000 because he had registered his designs with the Copyright Office.

Now, copyright protection is automatically given at the moment of creation, but without registration, the creator has to prove actual damages and direct loss of profits, which often isn’t easy. Even if you can prove it, will those damages come out to more than your lawyer’s fees and worth the time you spent suing? With registration, should you win the law suit, the usual award range is between $750 to $30,000, but even up to $100k could be won if the infringement was willful. It makes it worth that $30 registration fee.

This is why Suicide Girl Amina Munster registered her chest piece tattoo—[link: http://www.needled.com/archives/2006/03/copyright_registration_for_tat.php], created by Tim Kern. While, theoretically, both Tim and Amina would be entitled to the design, Tim signed his rights over to Amina and so she holds the copyright certificate exclusively. Amina registered her pirate tattoo after having it ripped off by another tattooer almost identically. Remember that a copy doesn’t have to be exact but “substantially similar” to the original work to be illegal. Amina never sued that tattooer but vowed that she would go after the next person to steal her designs.

Have there been any tattoo copyright cases?

Two cases involving celebrity athletes and their tattoos have already made the news—[link: http://www.needled.com/archives/2005/06/david_beckhams.php]. In the UK last summer, tattooer Louis Molloy threatened to sue David Beckham if he went ahead with a promotional campaign that focused on the guardian angel that Molloy had designed and tattooed on the sexy soccer star. Meanwhile, in the US, Portland tattoo artist Mathew Reed actually filed a law suit against Detroit Piston Rasheed Wallace and Nike for using in a sneaker commercial the Egyptian-theme tattoo that Reed created for Wallace. In both cases, the focus of the ads were the tattoos themselves. While there’s been no word on Beck’s case, the Wallace case settled. Maybe Wallace and Nike feared Reed actually could win. It was a gamble because there’s no published case in the US on tattoo copyright to help figure out which way the courts would go.

Until there is a case on tattoos and copyright, there remains a lot of unanswered questions like can a court order actual removal of the stolen tattoo design? Sounds extreme, but who knows?

To avoid law suits and even a laser, get your own original tattoo. The most important reason to do so is not legal, it’s ethical. Many custom tattoos tell people’s personal stories and mark unique events and experiences. Why have another person’s life written on your skin? Get a work of art that is all about you and leave out the lawyers.

By Marisa DiMattia of Needled.com

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