“Tattooing as an artistic culture is highly derivative and once an image is out in the community it is fair game for reproduction. We take art from all cultures and all styles and transform them into skin art. It is impossible to make two absolutely identical tattoos, and even if the client asks for a copy they will get their artist’s version of it, based on subtle changes to fit their body and the artist’s competence.”
That’s an important point. Human beings are not two dimensional canvases. Our bodies are various shapes and sizes. Ink takes to skin differently. I figured that this argument would blow a hole through the whole idea of copyrighting tattoos. But to be sure, I contacted an expert in copyright law, Mark Radcliffe, partner in the law firm of Gray Cary, who specializes in intellectual property protection.
I first asked him the basic question: is an original tattoo design inked into the skin a copyrightable work? He said, “Yes, all ‘original’ works of authorship are copyrightable: the design was probably originally created as a drawing, so the actual tattoo is a ‘reproduction’ of the original work. It is covered by the general provision of the copyright law.” He then added that, in suing for infringement of copyright, the tattoo must be substantially similar, not exact. Thus, a custom tattoo on an 18-year old supermodel copied onto a 300-pound couch potato would be in violation of the original work’s copyright protection.