Tattoo Litigation: after a century, life catches up with satire

Recent reports of alleged owners of U.S copyright in artwork reproduced on tattoos of sports stars have sued makers of video games depicting the stars for violation of copyright should come as no surprise, given the recent surge in the popularity of tattooing. Australia’s Arts Law Centre has produced a detailed guide to copyright issues relating to tattooing.

What may be more surprising is that this issue was the subject of a satirical short story published in 1911 by “Saki” (H.H. Munro) called The Background. Its unhappy protagonist, a commercial traveller named Henri Deplis,  commissioned “a glowing representation of the Fall of Icarus” from a prominent artist, which covered his back from the collar bone to the waist.  When Monsieur Deplis was unable to pay for the tattoo, the tattooist’s widow donated the work to the local municipality, which obtained injunctions to prevent the “canvas” from unauthorised display of the work, conduct (such as sea-bathing) which might damage it, or illegally exporting it. This entertaining (and out of copyright) story can be read here.

If we had been given an opportunity to advise an Australian Henri Deplis, we would have said that in our opinion, artwork that is designed to be tattooed  is  rather like artwork intended or licensed to be reproduced on clothing.  A purchaser of clothing  or a tattoo normally would have an implied licence from the owner of the copyright in the artwork to reproduce the artwork in photographs or film of themselves wearing the clothing or showing the tattoo, because that is what the reasonable person would expect to be permitted.   Tattoo artists who do not wish this to happen would need to expressly prohibit it in their contracts with clients.  But we would hate to spoil the story.

Annette Rubinstein, Former POF Attorney

BA(Hons) LLB(Hons)

Annette has worked in the Legal Policy and Research Department of the Victorian Attorney General’s Department and has practised as a barrister.