From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Thursday, 24 September 2015

When tattoos get under your skin: film extras face cover-up or getting peeled

This Kat was approached a little while ago with a question about copyright in tattoos.  This is a subject that this weblog has touched on before [here, here, here and here, among other places], but here's a fresh angle to it.  The story is told by film director Otto Bathurst, aided and abetted by Jenifer Swallow (Mind Candy).  This is how it goes:

A cattoo
"I am a Film Director and was recently working in the States on a movie that was set largely in a prison. Obviously we couldn’t film in a real prison, so we managed to find one that had been recently shut down. Then we had to populate it, so the search for extras began. In my drive for authenticity I naturally wanted lots of the ‘inmates’ to have tattoos on their body, but painting these on is an extremely costly and time-consuming activity, so it made sense to find people who already had tattoos. But then I hit a fascinating legal barrier. To my amazement I was told that anyone who has a tattoo on their body doesn’t actually own the IP to that tattoo, irrespective of who designed it. That tattoo, in fact, belongs to the tattoo artist. Thus to ensure that the film was protected from intellectual property infringement litigation, every extra we employed who had tattoos would have to have a clearance form from the actual artist of each individual tattoo on their body. If they didn’t, we would then have to apply make-up to cover over their tattoo and then re-paint a new tattoo on top (a design for which we had already obtained the copyright).

To describe the full logistical complications of this would be a distraction. What I wanted to try to comprehend was the legality behind this. At this point I deferred to my friend and legal expert, Jenifer Swallow ...

Copyright subsists in the designs for a tattoo as well as in the tattoo itself – it is an artistic work/work of authorship. The tattoo artist is the owner of that ‘work’ unless they transfer the ownership to another. That means they alone have the right to use/exploit it and they can claim legal recourse if it is misused/infringed.

Transferring ownership in an artistic work like a tattoo requires a formal contract – it does not happen automatically. It could be argued that a person commissioning and paying for a tattoo should have rights in it but, without the formal paperwork, the best a person can hope for is an implied licence to use it (a licence to own their own body?) -- but ownership stays with the artist.

There is a growing body of case law in the US on this subject, derived from a number of high profile cases. For now, those cases are settling out of court, but it is clear the law of copyright applies to original artistic works/works of authorship applied not just to canvas and the like, but to skin. An interesting development to watch for is whether this increasing litigation results in tattoo parlours requiring formal waivers from clients, acknowledging that their tattoos have been created by that particular tattoo artist – essentially signing over rights to their body when they get a tattoo.

So that is the legal aspect. But is there more to it? This recent experience has made me consider that perhaps most people who are having a tattoo aren’t fully aware of the legal position.

Now you could argue that the ownership of the IP of a tattoo is a moot point because clearly the artist can’t physically re-claim the work. However as Jenifer points out the situation is far from clear, the sands are shifting and accounting for the voracious and merciless appetite of litigators, who knows where this might end up. Enforced skin grafts?

I am reminded of the furore surrounding the works of the graffiti artist Banksy. Who would have thought when he first started wandering the night-lit streets of Bristol armed with a few canisters of spray paint, that in years to come gaps would start appearing in walls and his works would end up in court.

But to me this all points to something deeper. The biggest reason that I have never wanted a tattoo is that I don’t want the ‘mark’ of another on my body. My body is mine, all of it is mine and I want it and me, to be as free as possible from any external influence of anything or anybody else. Or to put it in simple artistic terms, I don’t want to be a canvas for someone else. I want to paint my own painting of my life.

The modern philosopher Serge Benhayon has stated that “the truth of your life runs throughout your body”. Which to me means that my body is a brilliant reflection to me of the life that I am living, and it is a reflection that I use daily to support me in my choices -- in it’s most simple terms; live well, feel well. But the validity of this reflection relies on the body being mine and the truth of the legal is that once you have had a tattoo, then your body isn’t in fact, entirely yours. What fascinates me is that, in this case, the law feels exactly correct, the law is actually reflecting exactly what I perceive a tattoo is; an unbreakable tentacle between me and the artist -- me as a puppet, the artist as the puppet master and the tattoo as the string. That is not something I would ever, ever want. A fanciful metaphor you might think, but actually the law proves that it is 100% accurate.

1 in 5 adults now have a tattoo. And in the US that percentage jumps to 1 in 2 people under the age of 30.

The legal facts thus mean that about 1 in 4 people in the western world don’t actually own their own body.

I wonder whether full knowledge of this legal situation might make some people think twice about getting a tattoo".
The IPKat has long resisted any possible temptations to get tattoo'd, not least because of the mess it would make of his fur. However, he rather considers that the incidental filming of people who sport tattoos should no more be an infringement of copyright than the incidental inclusion of buildings, cars, shops or pedestrians wearing branded t-shirts or carrying fancy shopping bags should be regarded as infringing any copyrights, design rights, trade mark rights or indeed anything else.  If the tattoo is not actually part of the plot but is merely there because, well, it's there, what sort of remedy might a court even consider if an infringement were held to exist?

Merpel agrees and feels that this might just be a neat area for a fresh application of the principle of exhaustion of rights: once a tattoo has been released into the world, its author cannot stop its owner doing anything with it, in so far as it is part of him or her.  The copyright will still stop others executing the same work of art and exploiting the copyright, rather than the work itself.

The Edinburgh Military Tattoo here


Michael Factor said...

Isn't this 'incidental use'?

Meg said...

Wonder how the IP is applied when the tattoo is designed by someone else and the tattooist is merely the medium between design and skin? I have ink that comes from someone else's published art (with the artist's permission) and a piece I commissioned from an artist friend (work for hire?), all of which were handed to the tattooist for their opinion on placement and for the physical act of tattooing but not for additional modification, so I feel that the IP remains, in those cases, with the original artist (even commissioned work as did not have a IP related discussion/clause or contract outside of commission/payment).

Nb. Not a lawyer, last formally studied IPR over a decade ago, am ex-law librarian so mostly curious.

Judyth said...

While I agree completely about the IP in a tattoo design, I think it should be mentioned that film extras should pose much less risk of litigation than the post suggests. The "extra" category in film designates miscellaneous bodies in the background of a scene who
a) are onscreen very briefly (to the point where their own mothers probably wouldn't spot them)
b) given no individual direction whatsoever
and so whatever tattoos they may have would be barely visible in the finished film and it would take an extremely sharp eye to see more than a general impression that the person has a tattoo. At that point, I believe it would fall within the scope of fair use/fair dealing if anyone were tempted to sue.
There could be a problem, however, if the performer were upgraded to "special business extra" (SBE) or "silent on camera"(SOC) and became more visible, to the point where the tattoo could be distinguished for more than a few seconds.
I am not an IP (or any kind of) lawyer but have worked in film production (in Canada) and have been an extra myself on several occasions. Afterwards, watching the films and knowing precisely which scenes I was in, I recognized myself ... as a blur in a background or a quick glimpse in a crowd. In the one case where I was promoted to SBE (for handing a main actor a key) I was visible individually but for well under 15 seconds. I could have had a large tattoo on my face and nobody would have been any the wiser.

Andrew Robinson said...

Interesting - something akin to a public performance right seems to be needed here, if that's not already implied in the transaction with the tattooist. I find the waiver idea problematic, I think it would be vulnerable to being struck out as a manifestly unfair contract term if it prevented public display of the tattoo, or restrained the purchaser from working as an actor/extra, as it could be argued that the whole point of getting a tattoo is so you can publicly display it.

Tim Jackson said...

In the UK, see Copyright etc Act 1988, section 31:

31 Incidental inclusion of copyright material

(1) Copyright in a work is not infringed by its incidental inclusion in an artistic work, sound recording, film or broadcast.

(2) Nor is the copyright infringed by the issue to the public of copies, or the playing, showing or communication to the public, of anything whose making was, by virtue of subsection (1), not an infringement of the copyright.

Of course, this wouldn't apply in other countries if the film is to be released internationally.

Anonymous said...

Then things get more interesting when the tattoo itself is a trademark. For example, many sportsmen and women who complete an "Iron Man" competition often get the Iron Man/Woman logo tattooed on. Who is infringing what here?

Anonymous said...

From the English perspective is Harbond still good law.....?

Anonymous said...

There was, of course, the Mike Tyson tatoo case with the tatoo artist suing Warner Bros. for copyright infringement with the parties ultimately settling.


Anonymous said...

What if you want to get rid of that old tattoo but the artist doesn't want to have his work destructed?

Michael Factor said...

Isn't this fascinating? It's not just tattoos that should not be displayed in public without a licence, but also hair cuts and designed clothing. I think we should all wear long black gowns, hijabs and veils. Not out of religious sentiments, but out of concern for copyright gone wrong!

Paul Morissette said...

Not too convinced by the incidental argument. Can you really argue that it is incidental when the production team has selected the extras ? I would rather consider the "substantial part" issue here.

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