Tattoos and Intellectual Property

Could your tattoo be an infringement of the law? In our modern day and age, tattoos have become increasingly popular and the stigma that has been associated with tattoos in the past seems to be fading with each passing year. In most cases, tattoos are designed by the tattoo artist based on the client’s preferences; however, there have been many cases where tattoos are simply copied and pasted, so to speak. It is these kinds of cases that brings me to the topic of tattoos and intellectual property in South Africa.

Intellectual property in South Africa comprises of various categories, such as trademarks, designs, patents and copyrights. Trademarks protect names, logos and slogans that are used to distinguish between goods and services in the trading industry, whereas patents protect inventions. Of particular importance to this discussion, however, is copyrights, which relate to the exclusive right to original works that can be produced in material form. Unlike other forms of intellectual property, a copyright does not need to be registered in order to afford the creator thereof protection, with the exception of cinematographic films. This means that in most cases, authors of original works are automatically protected and such protection is not limited to the country in which it was created. This makes such works more susceptible to litigation, due to the ever-increasing popularity of social media. If one looks at the nature of copyrights, it can be argued that tattoos fall under this category as it involves art that is produced in material form, the human body being the canvass on which it is “painted”. So that girl who posted a photo of her new infinity-sign tattoo might actually be leading the way to a very inconvenient law suit.

An example of this kind of infringement can be seen in the well-known lawsuit against Warner Bros by the tattoo artist who created the famous tattoo on the boxer Mike Tyson’s face. In the movie, The Hangover 2, one of the characters ends up with a tattoo identical to that of Mike Tyson and this interestingly brought about a copyright infringement claim against the studio. The parties eventually settled the matter, which tends to be the norm when it comes to these types of cases. A further example can be seen in the lawsuit against the creators of the video game, called NBA 2K16. This lawsuit arose from the depiction of a number of basketball players’ tattoos in the game, including LeBron James, Kobe Bryant, Eric Bledsoe, DeAndre Jordan, and Kenyon Martin. The tattoo artists who created the tattoos on the sportsmen alleged that the game’s success and popularity can be attributed to the details and “real -graphics”, including the incorporation of the players’ tattoos. Most of these types of cases are settled out of court and there is therefore no real precedent available to litigants who wish to pursue claims of this nature, especially in South Africa.

However, what would the sanction be if the parties are unable to settle the matter and the court finds in favour of the creator of the tattoo? The courts in South Africa have strong disciplinary procedures for copyright infringement in general, which can include seizure of the infringing material, damages, and even imprisonment. It would probably be unreasonable to order that an infringing tattoo be removed, which leaves damages and imprisonment as the probable sanctions for a copyright infringement involving the creation of tattoos.

So, what kind of defence is available to you if you have a tattoo that is the subject of a copyright infringement claim? One could argue that tattoo artists provide their clients with an implied license to publicly display the work, whether it be in photos or films. However, this defence becomes less viable when the tattoo is used for commercial application and profits are made without any recognition of the artist behind the work. Furthermore, an exact replica of the tattoo leaves less room for a defence than that of a similar or less distinguishable version of the copyrighted work. It seems therefore that the position with regard to cases of copyrighted tattoos is unclear and one could find oneself in the centre of a lawsuit of this nature quite easily.

Consequently, it might be advisable to enter into a contract of some sorts before getting a tattoo, in which the tattoo artist provides a waiver or license to the client, allowing him or her to display the tattoo on television or any sort of platform which might result in commercial gain. Perhaps a lawsuit of this nature can be avoided if the tattoo was designed by the client him- or herself. Perhaps we will see more of these cases in our courts and finally have a precedent to follow for cases of this nature.

Prepared by Kelsey Jayes