California copyright-case leaves tattoo artists in limbo
HOUSTON - A unique court case in California has ended without deciding an argument that could affect the country's tens of thousands of tattoo artists. The case was about the images that artists use to design their works of art.
Celebrity tattoo artist Kat Von D was being sued by a photographer who claimed she copied his work on a tattoo. When the jury decided there weren't enough similarities between the picture and the ink, some experts say a more important question went unanswered.
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Just north of downtown Houston, as tattoo artist Matt Menchaca works to freshen-up some ink, he knows clients have some very specific ideas about the work they want.
His Instagram page is filled with images of his finished tattoos that are sometimes for clients who bring pictures as inspiration. He says most tattoo artists will want to make those pictures unique.
"You follow my work, you see my progress, I want it to be, you can see any image I do, any tattoo, and you can say 'I know who did that'," says Menchaca.
Artist Alexa Loch says a lot of clients come in with a specific image in mind, and he knows the ideas are important. But the artist in her prefers a challenge.
"We can talk about what they want; what they want different from this image; how can we make this different; (make it) more original to you," says Loch.
Patent and Copyright expert Joh Rizvi, known at The Patent Professor, says the California case never got to the issue of whether images reproduced in tattoos are fair to use as art and expression.
"What I find is the more interesting question is, 'Is a tattoo different? Is this free speech?'" he wonders.
Fair Use has been the subject of countless lawsuits, and Rizvi says this one leaves artists in a legal gray area, with no precedent.
"If you are substantially similar to a copyrighted work, and you're a tattoo artist, you still need to be worried," says Rizvi. "This didn't give the the all-clear that a lot of people were hoping for."
Fair Use is the doctrine that copyrighted works can be used without permission in certain limited circumstances. While there is no wide-spread practice of tattoo artists getting permission to use copyrighted images for their work, Rizvi says they would do well to be careful about making their work unique enough, to be different.