Tattoo Turf

It's time to talk of many things ... including the appropriation of artwork for tattoos. This is a topic that has touched us at Black Mermaid Productions™, and is a topic we will be revisiting from time to time in this blog. We have been approached over the years by many people seeking permission to use Jozef's artwork, as well as the Black Mermaid™ logo and website hostess as tattoos. We have declined all requests in regard to the corporate logo but have said that people could use some of Jozef's artwork for tattoos, provided they asked for permission. We even have a section on the FAQ page of our website, which says:

Is the Black Mermaid logo available for license or for any other use?

No. The Black Mermaid logo is copyright and trademark to BMP. She has become a strong identifiable part of our business brand for the last 15 years and has been affectionately embraced by our readers. In many publishing circles and networking groups we are in fact known as the "black mermaids" or the "black mermaid people". In accordance with this brand recognition we have never licensed or given permission to any individual or organisation to reproduce the logo as she appears in our corporate stationery and also in all her website incarnations for commercial or non-commercial use, including tattoos.

Do you design mermaid tattoos for people?

Time constraints do not allow Joef to design any specific tattoos for interested people. Tattoo design is also not part of our core business. However, we do get occasional requests from readers, seeking permission to use some of the published BMP characters as tattoos. In principle, we do give permission in those circumstances, provided that the person contacts us by email. If you have such a request, you can email us on: permissions@blackmermaid.com.

As of today, we have added a codicil to that statement. The FAQ now also reads:

However, the tattooist must give original art and copyright credit to the artist – Jozef Szekeres and/or Black Mermaid Productions – on any digital (online/electronic) or print promotional publication where a photo of the finished tattoo appears.

The reason we are becoming more protective about the use of tattoos involves a case that has been working itself out over the last twelve months, as well as the looming Orphan Works Bill (see previous blog post 1 and 2) that, despite being temporarily shelved, still has artists running scared. Jozef runs a Deviant Art (DA) page, which is very popular with his fans and displays many of his pieces on there including his mermaid art. In November 2007 one of his DA friends alerted him about the use of his "mermaid with doll" artwork on another artist's DA page, except that it was being exhibited in the form of a tattoo. There was no corresponding attribution to the original source material or artist; in fact, the tattooist's website address was emblazoned over the bottom of the image.

Jozef didn't quite know what the protocols were about tattooists using other people's artwork but he wrote to the man in question and identified himself as the original artist. The artist wrote back and said that:

.. in no way form or fashion I would take a fellow artist illustration and pose it as my own, a tattoo is a replica of an original, in the tattoo industry its [sic] rare when a artist states where the original artwork came from. Its [sic] not our responsibility to tell our clients not to take artwork that's "not" there's [sic] ...A  lot of tattoos that are done are done with artwork supplied by the customer ... They do the research, they fall in love with a particular design and they bring in the artwork... I feel that once your work is out in the web its [sic] pretty much @ the public's disposal ... whether we like it or not as the original creators.

He then concluded by saying that his work has been taken and used elsewhere and he knows the feeling and that it is a Catch 22 situation where "we are damned if we don't showcase our work and are damned if we do".

Jozef didn't know how to respond and let it sit for about six months. He then emailed the tattooist and provided his point of view on the arguments presented and then said that after considered thought he requested the artist to either remove the tattoo artwork from the DA website or to post the source artist against it and to link the artwork back to Jozef's DA page. He also added that he would then be happy to endorse the artwork and say that it was used with Jozef's permission.

The artist complied and placed the appropriate credit onto the DA page where the tattoo appeared. However, the relevant modification and Jozef's art credit have not been added to the image displayed on the tattoo artist's corporate website.

Which brings us to the question of whether or not the general public or a tattooist at large has the right to reproduce artwork on somebody's body without permission, an appropriate credit, or  any form of licensing fee? Furthermore, can the tattooist display the work as part of his/her repertoire and in the process implicitly mislead the viewer into thinking the he/she created the original artwork?

We discussed this scenario with Australian author Neal Drinnan the other day at a nice dinner. Neal came up with the recommendation that if an artist had a collection of images popular with tattoo artists then perhaps the bundle could be licensed out to them through the appropriate tattooist's association or guild or through some sort of collection agency. This, in fact, could be a topic for VizCopy , the Visual Arts Copyright Collection Agency, to investigate at least from the Australian end – we don't know how things would fare in the USA or other countries. This kind of thing would be difficult to patrol unless the tattoo artist worked to a covenant not to reproduce any artwork unless their customer brings them verification that the piece they want is in public domain or they have permission from the original artist.

In December 2008 we featured artist Judith Howell's mermaid artwork in our Mermaid Treasures 11 post. Judith makes a very strong statement on her website in regard to Tattoos and Copyright. She says:

Tattoo artists make several hundreds of dollars in the application of a design, while the artists receive only $2 or $3 for the sale of the greeting card [from which the art was sourced by the tattooist and the customer] after costs. So I, and other artists feel this is a bit unfair for the use of heartfelt imagery that will be enjoyed for the rest of your life. Especially as the tattoo artist has made some $200+ and then "resells" an image (which isn't his), therefore earning him more money. 

She has a point.

We don't have the answer, but we are asking the questions. This topic is one that needs exploring and we will be interested in your commentary and discussion. It certainly created emotional discomfort amongst the artists we've talked to. We may also pose it to the VizCopy people, as well as the legal officer at the Australian Society of Authors (which incorporates the Society of Book Illustrators).