An inky copyright law mess

Tattoo artists and game developers are clashing over IP rights for tatoos reproduced on athletes’ digital avatars. What does Australian copyright law say?

With visual art works, Australian copyright law is not as clear cut as it seems. We need to look at who first created a work, the circumstances under which it was first put into physical form and the artistic and original merits of the work itself.

Keeping all this in mind, it's no wonder that copyright becomes much more difficult to suss out when the artwork in question is a tattoo.

Tattoo disputes in the news

Who can give permission for a tattoo to be reproduced in a video game?

While tattoos may seem like a small matter in the larger sea of copyright concerns, they can lead to serious issues. There have been a number of high-profile cases in recent years, centring on celebrities with recognisable body art.

Consider sport video games, where famous stars become playable characters. If athletes' tattoos make it in to the games, are anyone's IP rights being infringed? That question will be put to the test in New York, as a tattoo studio and a game development company square off in court. The case surrounds body art done on famous basketball stars that has been digitally reproduced for the NBA 2K game series.

Who owns the copyright in a tattoo?

There really is no simple answer to this question; in fact, in a typical situation, as many as four different people could claim ownership:

  • The person who created the original design, provided the tattoo was based on a photograph or drawing.
  • The person receiving the tattoo.
  • The tattoo artist who did the inking work.
  • The tattoo artist's employer.
Several people could be the real rights holder when it comes to tattoos and copyright.Several people could be the real rights holder when it comes to tattoos and copyright.

This level of complexity comes down to the inherent nature of how copyright is established and transferred. In Australia, copyright is owned by the first person to create a work in tangible form, provided it is both original and of an artistic nature. Most tattoos would meet both of these requirements. The two main exceptions to copyright ownership are when works are created in the course of employment or when the rights are transferred to another party.

For example, copyright in an original tattoo designed and inked by an artist working for a particular parlour would rest with the business. However, a mutual agreement regarding ownership – such as a clause in a contract or terms and conditions – could further impact who owns the copyright.

With so many factors potentially affecting ownership, copyright issues for tattoos are quite complex. Artists and customers should make sure to address who holds the IP rights for any body art work. To learn more, contact Alder IP today.