What’s going on with copyright in tattoos, graffiti, and emerging art?

Gone are the days when street art and body art were seen as a bit ‘out there’. Countless celebrities in music, fashion and sport have signature body art that often forms part of their overall appeal and contributes to their celebrity. In parts of London, Paris, Brooklyn, Melbourne and other major cities, street art is very much in vogue, and, as a result, authorities not just tolerate but encourage street art as a way to enrich their cities with art and culture.

This kind of sea change is often accompanied by a myriad of complex legal question. And many of them relate to intellectual property rights.

One such question is: what rights, if any, does the tattoo artist have if the tattooed person, without permission, indirectly commercializes the tattoo art by, for example, licensing their likeness and image to appear in a movie or a video game? Tattoos are artistic works protected by copyright and copyright law tells us that the author or creator of an artistic work owns the copyright in that work. But, after the tattoo artist copies that artistic work onto someone else’s body, is it reasonable to allow them to then restrict what someone else can do with their body in reliance on copyright? There have been a few cases on this point. In the US, a court held that LeBron James could license his own image (including his tattoo) to appear in a video game. In Europe, a Belgian court held that once the tattoo is applied to someone’s body, the tattoo artist cannot prevent the tattooed person from being photographed and cannot prevent photographs of that person (including the tattoo) from being distributed. There are still uncertainties in the law, and cases will always be decided on their individual facts, but the prevailing view seems to be that once the art is applied someone’s body, the individual rights of the tattooed person (e.g. their right to privacy, bodily autonomy, freedom of movement, and their right to freely commercialize their own likeness and image) will take precedence over the rights of the copyright owner (in relation to that particular expression/fixation of the art).

In terms of practical advice, it would seem sensible, for both tattoo artists and people intending to get a tattoo, to have agreed clear terms in a contract beforehand. The contract should at least cover: (a) who owns the copyright in the tattoo (this is particularly important if the tattoo artist and the tattooed person collaborated in the design of the tattoo); (b) if the tattoo artist is retaining ownership of the copyright, what the tattooed person can and cannot do with the tattoo (in particular when it comes to commercialization); and (c) what happens if the tattoo is to be removed or amended (this may be particularly important if, for example, the tattoo bears the tattoo artist’s name and the tattooed person wants to amend the tattoo in a way that substantially alters the original art and/or in a way that the tattoo artist finds offensive, because copyright owners also have moral rights including the right to object to derogatory treatment of the work).

Another question is: what rights, if any, does a street artist have if the street art is created without the consent of the owner of the building on which the street art has been created. This is significant because, even though the circumstances surrounding the creation of a copyright work do not affect copyright subsisting, in reality, if the creation of a piece of street art involved the commission of a crime (e.g. trespass), the street artist may not be willing to identify himself or herself. And there’s the rub. Copyright is not a registered right. It is an unregistered right, which arises automatically and vests automatically in the author or creator (or, in some circumstances, in their employer). Therefore, proving the existence of copyright, and asserting and enforcing copyright, requires the identification of the author or creator of the work. There have also been cases on this point. Banksy created the iconic ‘flower thrower’ mural on the side of a garage in Jerusalem and subsequently sought to exercise ownership/control over the art in an attempt to prevent a greeting card company from selling cards bearing the art without his permission. The issue for Banksy was that he couldn’t rely on copyright because he didn’t want to give up his anonymity, so instead he registered the image as a trade mark (not in his own name, but in the name of his agent). Unfortunately, the greeting card company was having none of that and decided to ask the trade mark office to cancel the trade mark on the basis that the application was filed in bad faith. Specifically, they argued, and the trade mark office ultimately agreed, that Banksy never intended to actually use the trade mark ‘as a trade mark’ (i.e. as a mark of origin used in connection with buying and selling of goods and services under the mark), and that the application was only filed to circumvent the law (i.e. to allow Banksy to control the use of the art, and stop the greeting card company doing what they were doing, without having to identify himself).

In terms of practical advice, street artists who think the creation of their art on someone else’s property might involve the commission of a crime (e.g. trespass) should create an earlier paper or digital version of the art first. That way, rather than the providing evidence of their creation of the street version of the art, they can instead provide evidence of their creation of the earlier paper/digital version of the art, should they ever need to enforce their copyright. Street artists who know that their creation of street art does not involve the commission of a crime (e.g. they may have been invited to create street art by the property owner or by a city authority) should ensure that they get a contract in writing with the commissioner first to ensure that the copyright position is clear. Finally, for any street artist who like Banksy wants to remain anonymous, it probably will continue to be possible for artists to supplement their copyright by registering the art as trade marks and/or registered designs, but if they want to avoid the trade mark being cancelled for reasons relating to bad faith or non-use, they should ensure that they make good faith use of the trade mark ‘as a trade mark’ (i.e. in trade, as explained above). That might involve a bit of ‘selling out’ (literally, selling a bit of merch with the art plastered on it), but unfortunately that’s the price of having a trade mark: use it or lose it.

The evolution of the intellectual property law to accommodate body art and street art will surely expand further into other forms of emerging art such as hair and make-up art, cake and food art etc. Watch this space.

Briffa are experts in all aspects of intellectual property law and practice. If you would like to arrange a free meeting with one of our specialist lawyers, please email info@briffa.com or call 020 7096 2779.

Written by Éamon Chawke, Solicitor