Should I Agree to Tattoo a Copyrighted Design Without Permission?
Emily Young
As a tattoo artist, you must understand the limitations of what you can and cannot tattoo. Tattooing another artist’s work without their consent may have potential consequences, as it may breach their copyright or moral rights. This article will help you better understand what copyright is and what copyright protection means for you as a tattoo artist, to help you better understand if you can tattoo a copyrighted design without permission.
What is Copyright?
Copyright refers to the rights that all artists, including tattoo artists, have over their own work. Once you create an original tattoo design, either on paper or directly on the skin, copyright exists automatically. Copyright gives you the power to control the use of your work and get compensation for your work when others use it.
Copyright also gives you the power to enforce your rights over your tattoo design. If someone else uses your design without your permission, you will be able to claim money for your loss and their gain.
Copyright begins from the moment you create the work, and it ends 70 years after your death. Because of this, tattooing a Van Gogh artwork will not result in a copyright claim.
Can Copyright Protect Tattoos?
Like all other forms of art, copyright automatically protects tattoo designs. The transfer of a design to a material form, including skin, is considered sufficient to gain copyright protection.
Depending on your employment contract, a tattoo artist will likely be considered the owner of their design. Alternatively, the tattoo parlour as a business might own the rights to your design. If your customer helps design their tattoo, they will have some rights over the design as well.
Having copyright over your tattoo gives you exclusive rights to the use, reproduction, adaption, and performance of your design. This means that other tattoo artists will require your consent if they want to use your original work. The key here is ‘originality’ – a generic tattoo (such as a name or an infinity sign) is unlikely to be considered original enough to give rise to copyright protection.
In Australia, the courts have not discussed copyright in tattoos specifically. Because of this, it is difficult to know what a court would say regarding copyright infringement for a tattoo. Generally, an owner may seek financial compensation for copyright infringement, and have the court stop the infringement.
Moral Rights
Where copyright exists, moral rights exist too. Moral rights refer to the protection of the relationship between yourself and your original work. Moral rights are different from your other intellectual property rights (including copyright) because you cannot transfer their ownership. Even if you grant someone a license to your work, you will not lose your moral rights.
Your moral rights are the rights to:
- be attributed as the artist;
- not have your work attributed to somebody else; and
- not have your work be subject to anything that will damage your reputation.
Any breach of your moral rights, such as where someone steals your tattoo design for themselves, will allow you to enforce your rights.
Should I Agree to Tattoo a Copyrighted Design Without Permission?
If the work is an original design by another living tattoo artist, you should seek permission before using their design. If you do not, this is a copyright infringement and an infringement on their moral rights. Even if it is unlikely that the original artist will find out about you using their design, it has the potential to damage your reputation and integrity as an artist.
Note that if the design is something simple (not requiring sufficient skill or originality), it will be okay for you to use it. For a tattoo artist to enforce their copyright, the work must be original.
Key Takeaways
All original artwork has automatic copyright protection, including tattoos. Before tattooing a copyrighted design without permission, you should consider the potential consequences. These consequences include:
- having to pay for using someone else’s design without their consent;
- being forced to stop using someone else’s design without their consent; and
- being liable for breaching another artists’ moral rights.
If you have further legal questions about what you can tattoo, our experienced intellectual property lawyers can assist. Call us on 1300 657 423 or complete the form on this page.
Frequently Asked Questions
Copyright refers to the rights someone has over their original pieces of work, including tattoos. Copyright gives creators power to control distribution of their work and get paid for the licensing or reproduction of their work.
Tattoos are automatically protected by copyright as long as they are sufficiently original. For example, a generic tattoo that many people have is unlikely to be protected by copyright.
Artists have automatic copyright over their original work. If a piece of artwork is sufficiently original and you tattoo it on someone else without permission, you will be liable for copyright infringement.