Friday, May 21, 2010

Who Owns Your Tattoo

The following was cut and pasted from Fran Ashton Law, with her permission

Who owns your tattoo?

The author or creator of an original work automatically owns the copyright. Copyright protection is automatic and begins when the work is created, but to fully protect your interests, you need to register your copyright with the Copyright office in order to sue for copyright infringement and to sue for statutory damages and attorney fees.

A tattoo artist can register his work for a copyright.

To be copyrighted, a work must be “fixed” and “original.” “Fixed” means that the work has been embodied in a form that is sufficiently permanent or stable long enough that it may be perceived, reproduced, or communicated. “Original” means the work was not copied from another and the work was more than merely trivial.

If the customer and the tattoo artist together create the design, they may be co-owners of the copyright.

If a tattoo artist has copyrighted the tattoo design you choose to have etched on your body, then the fact that the artist permanently affixes his copyrighted design on your body does not transfer to you the rights protected by copyright. Nor does that transfer ownership of any part of your body to the tattoo artist. That is because ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied.

If you and the tattoo artist, or other owner of the copyright, sign an agreement transferring the copyright to you, then you own the copyright.

In recent cases, some have argued that the customer owned the copyright because the tattoo was a “work for hire”. If a work is made for hire, the employer (other person for whom the work was prepared) is considered the author for purposes of copyright, and owns all of the rights protected by copyright, unless the parties have expressly agreed otherwise in a written contract signed by them.

However, the legal definition likely excludes tattoos from work for hire. A ‘work made for hire’ is—(1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

This definition seems to exclude a traditional tattoo from “works for hire”. First, the tattoo artist is not by definition an employee of the customer. The tattoo artist is likely an independent contractor hired by the customer. An independent contractor would create “a work specially ordered or commissioned”. And a traditional tattoo does not fit into any of the categories listed above for “a work specially ordered or commissioned”.

If you are a customer and you want the copyright to your tattoo, there are options.

1. Use a contract before getting tattooed, describing your contribution and either listing you as co-author or transferring ownership from the tattoo artist or tattoo parlor to you. Hire a lawyer to do this properly. The agreement should use the word “copyright” and say all “ownership” in the tattoo and any drawing, sketch, and other work that becomes or embodies the tattoo vests in, belongs to, and is transferred in whole to the customer.

2. Check the Copyright Office for any copyright registrations naming the Tattoo artist or assigned to the tattoo business. If a copyright covers the tattoo, you can ask the artist or business to transfer ownership.

3. Copyright the tattoo yourself. Preferably before being tattooed.


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