Tattoo Copyright: Is using a reference for tattoo art considered unprofessional?

What is tattoo copyright? Can I get a tattoo of a copyrighted image? Is using a reference for tattoo art considered unprofessional? What is art? Is it ownable? And is any piece of art truly original?

These are questions that have perplexed the art world since history began. Because practically every piece of art you enjoy, consume, purchase or create has been influenced by something else. And that is no different than when it comes to tattoos. Let’s talk about tattoo copyright.However, although every piece of art comes from a reference, that is not to say that art is not original or truly authentic. The problem often lies in the definition of what is original and what is ownable versus what can be used in a different context or reinvented in a different way.

The lines can get blurred and in some cases this can get your artist into trouble while also affecting the reputation of your shop. So it’s important for you to be aware of any issues in this area. Especially as a landmark legal case is currently being brought against a famous tattooist because she was asked to use a photo reference of a photographer’s copyrighted image.

Tattoo Copyright: Artists need to protect their work

As independent freelancers, tattoo artists are very protective of their work. Their unique style can take years to develop and perfect, and it can also be the difference between being a low-earning tattoo artist or a highly successful one. And this is one of the reasons an artist copying another's work will be highly frowned upon in the industry. The other being of course that artists are generally very principled people who will also not value a breach of integrity.

So any artist who appears to be copying another's work can quickly face acrimony, or in some cases even a lawsuit. Often the industry will be quick to name and shame any copycat artists. And the good reputation of your studio could be swiftly brought into the ramifications as well.

For these reasons as a business owner, it's important to ensure that your artists are developing and producing their own work, and not being tempted to make a quick and easy buck by redrawing someone else’s unique designs.

When we talk about tattoo copyright, it’s originality that’s key

Of course the most valuable art - the kind that will win Turner Prizes, or get auctioned for millions - is so valuable mainly because it is more unique than anything out there. Andy Warhol’s tin of Campbell’s Soup is one example of how a piece of work developed by someone else - the shape and packaging design of a soup tin - was reimagined through the lens of pop art. The psychedelic reinvention of it, with its luminescent colours, represented a new era of 20th Century consumerism where something so functional and ordinary could become something extraordinary - a pop star.

If he simply just took a photo of that tin of soup, then problems would arise. He probably would have been sued by Campbells for exploiting their trademark and copyright to make money. And the same for his Marilyn Monroe portraits. 

Putting your own stamp on tradition

In the same way, tattoo designs can be very derivative. Traditional artwork, for example, is based around a fairly established set of symbols like skulls, roses and mariner memorabilia which sailors would have worn as badges of honour. The neotraditional design movement today has reworked some of those symbols but also added new ones. Designers however are expected to learn this tradition but still put their own signature look to it. And this can sometimes be tricky. For example, you might have seen a style, forgotten about it and then subconsciously reproduced it later as your own.

Indeed copyright lawyers have been dealing with issues like this for a long time. When the songwriter George Harrison launched his solo career with My Sweet Lord it went straight to number one in the charts. Unfortunately for him though, the main structure of the tune mirrored a song released a decade earlier: He’s So Fine by The Shirelles. George lost his case and took a temporary hit to his reputation. It might have had much bigger implications for him, but for the fact he was already such a well-loved Beatle.

What does copyright law say in this area?

According to US law, copyright protection exists for original works in any tangible medium of expression that can be perceived, reproduced or communicated.

Of course, someone’s skin would fall under a tangible medium and their tattoos can potentially be reproduced through photography, videos, or even video games. But what’s also important to know is that it’s the original artist and not the person who has been tattooed who would hold the copyright. So reproducing another artist's tattoo onto someone else will create problems.

With this in mind - one design area of tattooing that may be impacted more than others is photoreal design. The references for these designs usually come from a photo. And these amazingly-skilled tattoos usually appear as carbon copies of them applied to the skin. 
For these tattoos to be regarded as ‘copying’ would depend on the image. If it’s an original image, then there is no problem. But if, for example, someone’s hero is David Bowie, then their lookalike Ziggy Stardust tattoo may indeed be breaching copyright. The risk with it is whether the tattoo will become famous enough for it to ever be a visible issue, or indeed whether the estate of David Bowie would ever make it an issue. After all, it can also be seen as a ringing endorsement for his music.

And in fact, a major court case has recently happened in this area which could impact the industry enourmously. Kat Von D a celebrity tatooist of Miami Ink fame is being sued by a photographer when she used one of his photos of jazz legend Miles Davis as a reference for a tattoo. The image shows the musician with his finger to his lips. She argued that tattoo she gave to her client for free was sufficiently different enough from the original photo, but the photographer Jeffrey Sedlik is arguing it infringes copyright and intellectual property rights. At the time of writing, a judge has ruled that the case can go to trial - and if the photographer wins, it will have huge implications for tattoo artists everywhere.

On the flipside a tattooist can sue another party too. This has happened with the movie Hangover II, where Mike Tyson’s tattoo was directly reproduced onto another movie character's face. The tattoo owner had already filed copyright, so he was entitled to sue the producers, and indeed he won his tattoo copyright case.

What kind of reference and how it’s used is most important

Most artists and tattoo artists will use references of one sort or another. The issue is more about what kind of reference is used and how it is used. For example ancient Japanese artists used oral references to envision what a lion or elephant looks like on their temples and the results were something unique and original. Walt Disney used a reference of a mouse to create the iconic looking Mickey Mouse. Therefore using a reference is not the same as copying, if the result is original and does not fall into tattoo copyright.

Artists have to start somewhere and they have no choice but to learn their trade by referencing styles. Picasso, for instance, was indebted to the influence of El Greco in his early work. He learned his style so that eventually he could learn how to break his style and reassemble it as something never seen before in the art world.

And the same holds true for tattoo artists - in order for them to learn and develop and grow, they need to soak up as many references as possible in order to find and develop their own style. They need to test their limits, and make or break new styles. In all these instances they are using references. But the references are serving the purpose of making them more skilled and unique. 

Maintaining the integrity of your artists and your studio

So what’s important is not if an artist is using a reference but if they are maintaining their artistic integrity. And when it comes to tattoos being produced in your studio the question is whether your artists are supplying sufficient creativity and originality to whatever references they are tapping into. You’re doing the right thing by taking tattoo copyright seriously.

Could someone who walks in from the street tell the difference between a tattoo used for reference and the new tattoo? And does that new tattoo show some of the style of its artist and not someone else’s?

If you can answer yes to these questions then you will not have a problem. The integrity of both the artist and your studio has been preserved. But if the lines are blurred then reputations can be lost, so it’s an important issue to look out for at your studio - after all without a reputation you won’t have a business.

If you are an artist and want to collaborate with us, read the tattoo artist collaboration conditions available in our studios.

If you want to read more about the shop manager role, this interview from a shop manager will surely help you decide if that is the right career path for you.