Reblog My New Ink! A New Conduit for Tracking Infringers

By Megan Conravey

Tattoos have been a part of human culture for thousands of years.[1]  Throughout history and in different cultures, tattoos have had many meanings, conveying status, love, religion, ideas, and even punishments.[2]  In many Ancient societies, tattooing was common among all members of a culture.[3]  However, as tattooing evolved, a subculture emerged that left tattooing available to only a certain type of person.[4]  In this tattoo culture, tattoo artists prided themselves on the original artwork they produced.[5]

Today, tattooing has broken into mainstream culture.[6]  It can be very lucrative to the tattoo artist.[7]  However, most of today’s clientele want tattoos of images portraying their favorite things: the Yankees logo, a Kurt Vonnegut quote, their favorite Beatles album, etc.[8] Most of the “favorite things” asked for today are held in copyright by someone other than the tattoo artist; who is going to produce a copy onto his client’s body and thereafter gain monetarily from the copy.

Under the Copyright Act, copyright protection becomes effective when “original works of authorship [are] fixed in a tangible medium of expression” and lasts for the life of the author plus 70 years.[9]  Further, selling the “tangible medium” does not in itself transfer any of the copyright interests to the purchaser.[10]  This protection gives exclusive rights in copying and derivative works to the original copyright owner.[11]  These tattoos, as copies or derivative works of the original copyrighted work, are infringements under the Copyright Act of 1976.

When tattoo artists create a new tattoo on a client, whether an original piece or a copy from another artist’s work, the Copyright Act must be considered.  In an original piece, the tattoo artist is arguably creating his own copyrightable work, since skin is a tangible medium upon which the work is being fixed and the originality required is minimal.[12]

When reproducing another artist’s work on skin—creating those Donald Duck tattoos—the Copyright Act must be considered as to whether or not the artist will be infringing by creating this work.  This consideration is also relevant to whether the tattoo being created is a copy or derivative work of another tattoo artist’s original creation.  The problem only arises if and when the copyright owner decides to enforce the copyright against these artists.  They can never enforce the copyright if they do not know about the infringement.  So how will the copyright owner ever find out about a random tattoo on a random person in a random city?

Another trait very unique to the Millennial Generation is its obsession with social media. Billions of social media users constantly share every aspect of his or her life on the Internet.[13] The seemingly smallest information can instantly travel all around the world thanks to modern connectivity.  Together with social media sites such as Facebook, Tumblr, and Twitter, the news of an infringed copyright can reach the copyright owner much easier than it might have in the past.

In fact, there are whole webpages dedicated to posting tattooed works.[14]  The trend of tagging posts and “reblogging” them in some way also helps to spread the information.  It also makes it more likely that the original copyright owner will see the work and chose to bring suit against the tattoo artist for infringing the copyright.  It has become very popular to post a picture of a tattoo with a description like “Look at my Star Wars sleeve!” while giving credit to the tattoo artist in hopes of bringing in clientele, but this may actually open up the possibility for legal action against the artist.[15]

Social media is currently being used to find evidence in numerous fields of law: criminal, family, constitutional, and even copyright.[16]  While private messages are afforded certain discovery protections, lawyers increasingly use public online posts as evidence in civil and criminal litigation.[17]

Individual social network participants should remember that although the Internet presents a tempting veil of anonymity, the same copyright laws attach for anything posted into the public Internet forum.[18]  Therefore, an online picture of a tattoo portraying the reproduction of a copyrighted work may lead to an infringement suit by the original copyright owner.  As with any posing on a social media site, discretion should be exercised.  Before sharing that new tattoo boasting the “awesome job Johnny at Tattoo World did on my Hermione portrait,” consider the legal repercussions that may arise.