Tattoos and Copyright Law
Question: Does Fair Use Law apply to tattoos of copyrighted material, or only tattoos of other artist’s interpretations of copyrighted material?
WARNING: Incoming long ass post!
Let’s talk about the artwork itself first. Believe it or not, the copyright of the derivative work is often the most controversial part of this issue. If the subject matter is not product/property of artist, their design (necessarily falling under derivative, parody, or fair use itself) is actually still subject to copyright of the original creator - all work falling under fair use/parody is derivative by definition. Technically nobody owns the copyright for a derivative/fair use work because the original creator didn’t create it, but neither does it belong to the artist who created the derivative work (because law gives the right to create derivatives to the copyright holder.) However, because the original creator owns the copyright to the original (upon which the second work was derived) they get to decide if they will allow that derivative work to be published and/or reproduced for money, or in this case, tattooed.
Fun Fact: Original fan characters existing in the same universe as an original copyrighted work are actually copyright their owners, and not subject to the copyright of the franchise or “world” that they exist within unless they use copyrighted elements from that work. (ex. Harry Potter OC existing in the “Harry Potter” universe, but not using any copyrighted material like spell names or house emblems in its execution.)
Conclusion: The short answer is both. Fair Use can indeed apply to tattoos of both copyrighted material and derivative works based on that material as long as they are not being used commercially. One could say that a tattoo falls under “non-profit educational” in use (the most logical legal way to defend a tattoo, I think) for starters. Tattoos don’t usually make an impact on sales, in any case, so most of the time it’s not even an issue except on principle. In the times where it does impact sales, it’s in situations like Hangover II/Warner Bros. vs Mike Tyson’s Tattoo Artist, where an original tattoo was being used commercially without permission- so people start talking about the finer points of Fair Use and parody.
Anyway! In most cases, the responsibility will fall to the client because a “work for hire” contract relieves the tattoo artist of any legal liability. And as long as that tattoo isn’t used commercially, it should fall under Fair Use, more or less. Without a work for hire contract, the copyright implications and subsequent liability falls to the tattoo artist. They would need to get permission from the copyright holder(s) to legally reproduce that work because they’re charging money for the reproduction. If the derivative artwork contains copyrighted elements, they would need permission of the original copyright holder as well as the derivative artist (since, as I said, no one technically owns the copyright, but the original copyright holder has the final say.)
Best to just get public domain works and original artwork tattooed on you. :B
P.S. I’m hardly a lawyer/attorney. I make a point to try and learn these things because I want to make artwork as legally as possible. It’s good to have a stance on these kind of things so you know what to put in your contracts and where your work fits into the law.