by Mona Adele

Created on: March 05, 2009   Last Updated: March 08, 2009

You've gotten some new ink and you want to show it off to the world by posting pictures on your blog or Facebook page. Does this create an issue under copyright law? In the murky world of intellectual property litigation the answer is "it depends".

For example, in 2005 Rasheed Wallace and Nike were sued by a tattoo artist when Wallace's tattoo became the object of an advertising campaign. The case was settled out of Court prior to the judgment for an undisclosed sum. However there is little doubt that an artist who creates a custom design for a client still retains some rights to that design.

WHAT IS A COPYRIGHT?

International and U.S. copyright law protects original works of authorship. That protection attaches the moment a work is fixed in tangible form. In most cases a tattoo starts out as a design that is first created on paper (or computer, depending on the artist). The protected work is the design fixed on paper or on computer. The tattoo itself is a reproduction of that work.

WHO OWNS THE RIGHTS TO THE DESIGN?

Ownership of copyright is vested in the author or company that created the work. If a tattoo artist comes up with a design on his or her own or the client picks a design from a collection of the artist's works the artist would own the rights to the design outright. Similarly if a client comes in with a design he or she created the client would own the rights to the design.

Copyright Law is fairly clear on the fact that ownership of the physical object does not confer rights to the intellectual property contained in the physical object. Therefore simply purchasing a pre-fabricated tattoo is a bit like buying a CD. You may own the physical CD, but your rights are limited to the physical product. A purchaser doesn't obtain rights to the work itself.

Frequently, however, tattoos are a collaborative effort. The client explains what he or she wants and the tattoo artist helps to make that desire a reality. The artist will sketch the client's concepts out until it is what the client has in mind. However a tattoo artist also uses his or her own skill, artistic style and creativity to create the design. Because copyright law allows for joint ownership of a copyright, both the tattoo artist and the client may co-own the rights to the work. A person may claim co-ownership if they contributed in some material way to the creation of the work. This may include collaborative brainstorming.

WHAT CAN A CO-OWNER DO WITH THE DESIGN?

The rights in a copyrighted work

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