Tattoos have been a form of art and expression that remained untouched by intellectual property law for decades. Even until recently, tattoo artists relied on social norms to ensure that their work was not copied by either blacklisting or publicly shaming copycats in the industry. Now that tattoos have become increasingly popular and respected as a legitimate form of art around the world, tattoo artists are looking to the law for protection. Earlier this year, an American tattoo company sued the producers of the game NBA 2K16 for allegedly breaching their copyright in tattoo designs inked on NBA superstars such as Lebron James and Kobe Bryant. Back in 2011, tattoo artist S. Victor Whitmill filed a copyright claim against the film studio releasing The Hangover Part 2, claiming that he designed the tattoo and that the film-makers have used his copyright without permission.
With many of New Zealand’s own stars sporting indelible ink on parts of their body, it is not a remote possibility that New Zealand will also see its own copyright case on tattoos in the future. Original tattoo designs can be protected by copyright in New Zealand as “artistic work” under the Copyright Act 1994. Ownership of the tattoo design would be at the core of any copyright claim involving tattoos – and in many cases the question of ownership would ultimately come down to the contract between the client and tattooist. Copyright law, as it stands, allows for a near permanent mark on a person’s body that may be so tied to that person’s identity to be owned by someone else, e.g. the tattoo artist. What is further surprising is that in New Zealand tattoo artists can also sue for breach of their moral rights if changes are made to their design by another tattoo artist. Of course, we would expect judges to reasonably limit the rights of tattoo artists and turn down claims the public would find unpalatable. But copyright itself being a creature of statute, it would be preferable to see legislative changes that deal with such uncertainties surrounding this novel area for copyright.
The heart of the issue is exactly who owns a tattoo - the bearer or the artist. "Tattoo artists haven't tried to enforce their copyrights and moral rights until now. Tattooing was untouched by intellectual property law. But, given the increasing number of tattoos and the fact the art of tattooing is becoming more and more respected, that is now changing," she says.