Adams & Adams Attorneys argues that copyright lies at the heart of this contentious issue.
Nicole Smalberger, a senior associate at the law firm said this was because unlike other artists such as those working on canvas or clay, a tattoo artist’s rights were less straightforward as they were working on skin attached to a living human being. “Although a tattoo is an artwork which has been reduced to a material form, the material form to which it has been reduced is on a human body,” she said.
“A tattoo is an artistic work. If it is original and reduced to a material form copyright subsists.”
Smalberger said in the case of artistic works, it was the artist or creator of the work who owned the copyright, namely the tattoo artist and not the person on whom the tattoo appears, irrespective of the fact that the latter has paid for his/her tattoo.
“In short, when you pay your tattoo artist, you pay for the tattoo, not the copyright subsisting in it.”
As the controversial debate around who owns the rights to a tattoo continues, prominent figures including those from South Africa, are now being urged to seek assignment of the copyright in their tattoos from their tattoo artists.
“The National Football League in the US has already been making similar recommendations to its players to avoid them getting into hot water and our local sports stars in South Africa would be well advised to follow suit,” said Smalberger.