Fleshing out the copyright in a tattoo

In what we understand to be an industry-first, the Copyright Agency (an Australian not-for-profit collecting society that also licences copyright protected literary and artistic works) has licenced an Indigenous artwork for a tattoo.

The artwork, titled Jarragini (buffalo), is by Indigenous artist Chris Black who works with the Jilamara Arts and Crafts Association (Jilamara) and was born in the Milkapti Community in the Tiwi Islands.

The artwork is a screen-print of a head of a buffalo, which was introduced into the Tiwi Islands by British colonisers and then became a source of food for the Tiwi people.

Mr Black’s artwork has become the first tattoo of its kind in Australia after Katie Hagebols came across it on Jilamara’s website: https://jilamara.com/.

Ms Hagebols is the manager of Kakudu National Park’s Marrawuddi Gallery and a tattoo enthusiast.  When Ms Hagebols saw the artwork on Jilamara’s website she approached Jilamara to seek permission to use Mr Black’s artwork for a tattoo on her arm.

Through negotiations with Jilamara, Mr Black, Ms Hagebols and the Copyright Agency, Ms Hagebols was able to use Mr Black’s screen-print as a tattoo.

Why does it matter?

Australia has experienced a growth of tattoos!  According to 2018 research, one in five Australians has a tattoo.[1]  For 72% of tattooed Australians their most recent tattoo was a picture or a symbol.  From some general Google searching, it seems common for people to download pictures of works they like and bring them to their tattooist to copy.

According to Dr Marie Hadley from University of Newcastle:

My unpublished research among tattooists in New Zealand suggests there can be a lot of pressure from clients to copy existing images. “I do get brought art or pictures of other people’s tattoos,” said one tattooist, and quite a few pictures “come straight off the internet.”

Clients often request direct reproductions of imagery they have downloaded. In these circumstances, appropriation can be a pragmatic business decision.[2]

This leads to a number of questions:

• Is it copyright infringement to copy a work and use it as a tattoo?
• Does copyright exist in tattoos?
• What about moral rights?

Is it copyright infringement to copy a work and use it as a tattoo?  

In looking at this question, you first need to consider what work is being used as a tattoo.

If we look at the case of the Jarragini (buffalo) by Mr Black, this is an original screen-print which would receive protection as an artistic work under the Copyright Act.

In Australia, there is no need to apply for copyright registration as it arises as of right, without the need for formalities or registration.  Therefore, Mr Black would automatically own the copyright in the screen-print.  As the owner of the copyright, Mr Black would have the exclusive rights to:

• reproduce the work in a material form;
• publish the work; and
• communicate the work to the public.

Using copyright material without the copyright owner’s consent amounts to a copyright infringement if:

• there is an unauthorised use of a substantial part of the work; and
• an exception permitting the use does not apply.

There could be strong prospects of bringing a case for infringement if someone copied an original artistic work as a tattoo.  However, as far as we are aware, there haven’t been any cases on this in Australia yet.

One remedy for infringement is to have the infringing work “delivered up” and destroyed, so it would be interesting to see how the law is applied in this area.

Does copyright exist in tattoos?

Section 10(1) of the Copyright Act provides that artistic works include:

• a painting, sculpture, drawing, engraving or photograph;
• a building or a model of a building, whether of artistic quality or not
• a work of ‘artistic craftsmanship’.

While the definition of “artistic work” does not expressly include tattoos, and there are no Australian cases on the point, there doesn’t seem to be a reason that a tattoo couldn’t receive copyright protection as a drawing, painting or potentially a work of ‘artistic craftsmanship’.

A number of cases in Australia and the UK have considered these definitions and the threshold for receiving protection.  Many of the decisions focus on the standard of a drawing or artistic work and whether simple works or designs can receive protection as artistic works.

In the case of British Northrop Limited and Others v. Texteam Blackburn Limited and Another[3] the High Court of Justice looked at the definition of drawing.  In this case, there was a contention that the drawings were “too simple to constitute an “original artistic work”, Here, Megarry J held that:

I should be slow to exclude drawings from copyright on the mere score of simplicity. I do not think that the mere fact that a drawing is of an elementary and commonplace article makes it too simple to be the subject of copyright.[4]

In Burge v Swarbrick the High Court of Australia considered whether a “plug” could receive protection as a “work of artistic craftsmanship.”[5]  In this case the Court considered the 1963 decision of Cuisenaire v Reed [1963] V.R 719 at 727 and stated that this was a decision:

…which turned upon the 1911 Act, Pape J. said that the phrase ‘‘artistic work’’ was ‘‘a generic term or label’’; this included subject-matters not necessarily possessing any element of artistic quality at all, and so had a wider meaning than the word ‘‘artistic’’ in the phrase ‘‘works of artistic craftsmanship.[6]

It is clear, based on these decisions, and the express definition of “artistic works” including drawings and paintings, that most tattoos would qualify as an artistic work—especially while the ‘originality’ threshold for copyright protection remains a low bar in Australia.

So if tattoos can receive copyright protection as artistic works, then the next question becomes – who owns the rights in the tattoo?  The standard position is that copyright in an artwork belongs to the artist and the artist has exclusive right to control where and when the work is reproduced, presented and to profit from the work.  These rights can be assigned or licenced but, as we understand it, this is not common place in the tattoo industry.  Therefore, there is the potential that either the tattooist, the tattoo company, the client, or another artist is the owner of the copyright in a tattoo, deepening upon who created the work.

As set out above, the person who owns the copyright has a whole bundle of exclusive rights including the right to communicate the work to the public.

Technically, this would become tricky where the tattooist or tattoo company is the owner of the copyright and is the only one able to communicate the work to the public.

This leads to a Pandora’s box of questions – what happens when you photograph someone with a tattoos, what if a famous person has a tattoo and is featured on advertising or movies, what if someone who has a tattoo is involved in a crime and is featured all over the paper and what if you copy someone else’s tattoo?

It is likely that, even if there is no express or written agreement between the tattoo artist and the individual, there is some form of implied licence.  A copyright owner can grant a licence to another person to be able to do certain acts.  This can either be express (for example, through a contractual document) or it can be implied through conduct.  The reason behind implying a licence is that someone who has paid for copyright material to be produced for them should be permitted to use it for that purpose.

If a client pays a tattoo artist to create a tattoo and ink this on to the body, it seems like this would constitute conduct to create an implied licence.  However, the scope of any implied licence would be unclear and there may be certain acts that an individual cannot do with their tattoo.

What about moral rights?

Another topic which has leads a rabbit hole is the question of moral rights.  Moral rights include the right of attribution of authorship, a right not to have authorship falsely attributed and a right of integrity of authorship.

Under the Copyright Act, if the work is an artistic work, the attributable acts are the following:

• to reproduce the work in a material form;
• to publish the work;
• to exhibit the work to the public; and
• to communicate the work to the public.[7]

Only individuals have moral rights; they are not assigned like copyright, although individual artists can consent to acts that would otherwise be an infringement.

As stated above, an artist also has the right to “not have the work subjected to derogatory treatment”.  This includes the right to not have the work materially distorted or exhibited in public in a way that is prejudicial to the author’s honour or reputation.

This is another issue which leads to a variety of questions – what happens if you want your tattoo removed, what happens if you display your tattoo as part of an artwork or exhibition or you display your tattoo next to another tattoo and distort it?

The issue of copyright and tattoos provides more questions than it does answers!  There is a lot left to be considered and an issue which may become more prevalent as Australians continue to get tattoos.

Also, another interesting concept is moral rights in graffiti art.  For more on this see our previous article.

[1] https://mccrindle.com.au/insights/blog/tattoos-in-australia-perceptions-trends-and-regrets-2/#:~:text=1%20in%205%20Australians%20has,up%20from%2019%25%20in%202016.

[2] https://theconversation.com/explainer-who-owns-the-copyright-to-your-tattoo-142825

[3] British Northrop Limited and Others v. Texteam Blackburn Limited and Another [1973] F.S.R. 241, [255].

[4] British Northrop Limited and Others v. Texteam Blackburn Limited and Another [1973] F.S.R. 241, [255].

[5] Burge v Swarbrick [2007] HCA 17.

[6] Burge v Swarbrick [2007] HCA 17, [48].

[7] Copyright Act 1968 (Cth), s 193(2).