It is well known that tattoos are part of the history of humanity, it is enough to take a look at the first civilizations to know what importance they had in their society. The first tattoos were found about 5 thousand years ago, in Siberia, Polynesia or the Marquesas Islands, and Egypt. The meaning of tattoos varies according to culture and can be a symbol of social status, to honor a battle, have a religious meaning, or simple aesthetics, among others. Tattoos were introduced to the western world, by sailors and soldiers, and it is said that at first tattoos were worn by people of dubious reputation or low social status, including circus artists and bohemians. With the passage of time prejudices against tattoos have disappeared and now any person, regardless of race, religion, social statutes or sex, carries them, in fact they have gained strength in our society, because it is an identity issue and / or belonging.
In addition, new techniques for tattooing have emerged, such as that recently created by the Ukrainian artist Rita Zolotukhina known as “Rit Kit”, who uses plants and flowers as stencils to create the so-called botanical tattoos.
More and more clients are already asking us if it is possible to legally protect a tattoo, and the answer is YES. Currently, the tattoo artist is considered an artist and the tattoo is considered a Work of art if the following requirements are met:
– Be an original creation.
– Be susceptible to being perceived, or reproduced communicated publicly.
– To be fixed in a permanent material support, which in this case is the skin, or it can be on paper. Some claim that human skin is not a permanent material support and that depending on the case, the tattoo must offer sufficient guarantees of permanence.
Tattoos are protected in the category of “pictorial or drawing work” and a certificate of registration can be issued by the Copyright Registry in those countries when this Registry is available (Spain, Mexico, USA, etc.)
Regarding the protection of tattoos in the United States, these are protected by the Copyright system, and the requirements to be protected are practically the ones detailed above, however, there are already legal precedents on cases in which the artist sued a third to use and exploit a tattoo of his creation; for example, the most famous tattoo case that was reproduced in the face of a well-known American actor, in the movie “The Hangover 2” and that is a copy of the tattoo of the famous boxer Mike Tyson. The defense argued that it was a parody, but such an argument was dismissed, since it was a faithful copy. Despite this, the film was released on the expected date, it was negotiated with the artist and an unknown amount was paid for damages.
Another interesting case is that of a basketball player belonging to the NBA, who made a commercial for the NIKE brand and in which the tattoo could be seen on his body, in the same way he was sued and a negotiation was reached at closed doors in which the payment of a considerable amount was agreed, enough for the artist/plaintiff to feel satisfied.
In the case of Mexico and Spain there are no sufficient legal precedents, however it is necessary to promote adequate and timely protection of the creations and having a Certificate gives probative value to an eventual dispute.
In sum, what are the measures that should be taken to protect a tattoo?
The first would be to register it as a pictorial or drawing work, although the drawing can also be registered as a trademark or an industrial design (for example, an EUTM or a RCD before the EUIPO). The second, to make a contract for a specific work, professional services contract, and even a transfer of rights, everything depends on the side where you are, since each registration or certificate granted becomes an intangible asset in companies and businesses and it gives a competitive advantage in the market. Remember also that the name or denomination of a tattoo studio can also be protected as a trademark. The most convenient, is always to consult with a lawyer specialized in intellectual property, better safe than sorry!
Author Rocío Robles Ruiz. 2018.
- ¿Cuál es el origen de los tatuajes? Por Alberto. www.vix.com
- “Los tatuajes: historia, simbología y tradiciones” Por El Cuerpo, Noviembre 30, 2006. www.elcuerpo.es
- “El tatuaje: Historia y tradición”, Por Horimime.www.wordpress.com
- Boredpanda.com “Tatto artist uses real leaves and flowers as stencils to create botanical tattoos” by James Gould-Bourn
- “Tattooss: Can We Copyright that too?” By Amian Mohanty, June 22, 2011. De-Coding Indian Intellectual Property.