Plagiarism is
an ongoing concern in the tattoo industry, rearing its ugly head in
three forms. The first is direct tattoo plagiarism; when an
unscrupulous "tattooer" pulls photos from the Internet or other sources
and claims the tattoos displayed are their work. I have seen this kind
of thing go even further with wanna-be tattooers stealing entire
portfolios out of shops. Usually, there are some tell-tale indications
of this. Whenever someone would come to the shop I worked at and
displayed a portfolio with numerous divergent styles and inconsistency
in quality of work, a simply image-search on Google usually revealed the
scam. The reason for this act is simple; a "tattooer" who has not been
professionally trained through an apprenticeship has come to the
conclusion that the only way to grow (or to make real money) is to be in
a tattoo studio. Should they bother to try to get in with their own
woefully inadequate portfolio, they quickly recognize that if they can
get away with taking credit for another person's work, they can get
their foot in the door. Internet savvy studios catch this scam quickly,
and if not it becomes obvious during the audition tattoo that is a
common practice in most shops.
The second
form of plagiarism is when a tattooer copies a tattoo done by another
artist. This is actually quite common. Customers who are themselves
budding tattoo aficionados find an image in a tattoo magazine or on a
website that they just have to have, and they bring it into their local
tattooer to get it themselves. I say "budding" aficionados because
collectors soon learn the value of having original work custom designed
for them by a tattooer they admire and trust. Tattooers will often
offer to put their own spin on the design, but if the customer is
adamant about getting that tattoo, then typically that is the tattoo
they get.
As an aside, a
favorite joke a friend of mine tells is about they guy who walks into a
tattoo convention on the last day and asks who won the "most original"
tattoo contest. He then turns to an artist who is looking for a
customer and says, "I want that one."
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| You can only do praying hands so many ways. |
The problem
here is that it can be difficult to discern a custom tattoo from a
tattoo that was originally a tattoo flash design (based on a design that
was created and marketed to tattoo studios and tattooers with the
intent that it would be offered to customers en mass). There are
also degrees of this kind of copying; from biting off (hard) on another
artists style, to blatantly copying line-for-line another tattoo. The
simple truth is that newer tattooers who have little to put into their
portfolios will often include pieces that started as flash or are copies
of tattoos from another artist. Older tattooers will often fill their
portfolios with custom work and designs of their own. It is a part of
the maturation process in the life of a tattooer. We learn by trying
other people's styles until we eventually develop our own. Even in
styles with strict parameters like American Traditional; the best
artists eventually find a way to step out from under the shadows of
those before them and do their own thing, but only after a healthy
number of years imitating the artists they admire.
The third type
of plagiarism is related to the second, but deals with art that is not a
tattoo, and obviously not tattoo flash. The scenario presented by Deb
Yarian in her own article: Flattery, Thievery, or Just Plain Business (to which this article is a response, thanks Deb!) is thus:
A client
walks into your studio with a piece of art they wish to have tattooed.
The tattooer, concerned about simply copying another artist, suggests
they could create something similar, but the client balks and insists,
aside from making the design more tattoo-friendly, they want it
unchanged. Does the tattooer do the design, and if so what obligations
do they have, ethically and legally, to inform the original artist?
Let us
consider the legal issue first. Plagiarism, the wrongful appropriation
or copying of another person's works, generally refers to writing, but
also covers other forms of art and intellectual property. Plagiarism is
itself not a crime. Copyright Infringement is a crime, though how that
crime is defined and enforced is a slippery issue.
A copy is
defined in US Copyright Laws as a direct reproduction. The law further
covers the unauthorized distribution of copies. Interestingly, it is
not considered copying to translate a design from one medium to another;
ie from a 2-D drawing to a 3-D sculpture. Describing a painting in
extreme written detail is not a violation of copyright. A piece of art
which is translated into a tattoo by a tattooer fits into this idea.
If a holder
of an intellectual copyright wishes to protect their work from being
translated into other media, they must trademark the works, which offers
further protection. Courts have, however, found in favor of copyright
holders who's work had been translated into other mediums and
mass-marketed, ie dolls being produced without authorization from
cartoons.
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| Not a gill-man, a cabbage monster! Yeah... |
Tattoos
may also fall under the Fair Use Doctrine in a loose manner. A tattoo
is not designed to supersede the original. It will not replace or
compete with the original work in the market. Tattooing a design also
does not impact the value of the original work. Where there may be an
issue is that the nature of the copied work is typically not of a
private work which should be public domain, the translation of the work
is for profit (not the betterment of the public), and the copy is often
substantially similar to the original (even if translated into a new
medium).
So, if an
artist wished to pursue legal action against the creation of a tattoo
using their work, they potentially have grounds to do so. The tattooer
can limit the likelihood of this by not offering the design to the
public, and by not including the finished tattoo in their portfolio or
in their advertising. This makes the recreation a one-time job, and not
further exploitation of another's work for profit.
In reality, we
see this kind of thing all the time. In fact, tattoo flash often
includes images which are clearly the copyright of another party, such
as sheets featuring famous movie monsters, actresses, or cartoon icons.
Either this kind of homage is considered beneath the holders of the
copyright to be overly concerned with, or the potential reward for
pursuing legal recourse is too trivial to consider.
Keep in mind
though that legally, you never know what will trip a big corporation's
trigger. A story I have heard, which may be little more than an urban
legend, deals with amateur auto-racing. Before NASCAR, racers would
mark their cars with numbers and distinctive designs, including cartoon
characters from Disney and Warner Brothers cartoons. This was until
Disney began threatening to sue the violators of their copyright,
resulting in Ed Roth's "Rat Fink" design. Disney again sought legal
recourse in the 1970's against the creators of "Air Pirates", an
underground comic book which saw only two issues ever published.
Legally,
odds are you are fairly safe as a tattooer using another artist's
design, especially if your do not try to make a name for yourself as the
originator of the work. Ethically, things get even more fuzzy. Ethics
are almost exclusively a matter of one's personal philosophy. I
mentioned above that the use of major commercial designs is fairly
common place. There are artistic "parodies" of various designs and
likenesses which skirt the line between homage and copy. It doesn't
make it right, but published artists have their work copied into tattoos
so frequently that some even consider it a tribute and feature the
tattoos in publications with their work.
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| Do what you can to make it your own. |
Where I think
that there is an ethical need to inform the artist is when said artist
would have benefited significantly from the paid-use of their work. $25
will not mean much to a person who's work is featured in Playboy or Hi-Fructose (it
is not my intent to liken one publication to another, they just have
both featured artists I enjoy), but may mean something to someone who is
paying bottom dollar for a simple website displaying their art. The
good-guy thing to do is share the tattoo image with them, so that they
can use it to promote their own efforts. The great thing to do is to
send that artist a gratuity for the use of their work from your
tattoo-profits.
That said,
until you are so well-off and renowned as a tattooer that you can insist
on tattooing exclusively your designs in your style, you should
probably do the tattoo. The person making the request will just take it
down the street to a tattooer with less scruples (and probably less
skill) than you if you don't, plus will leave with a bad impression of
your studio. Do what you can to convince your client to allow you to
do your own thing with it, but ultimately you need to give the client
what they want. If you are really torn about it, ask your studio-owner
what they think. If it has been a slow week, they will probably favor
profit over artistic integrity.
Besides,
having that Tasmanian Devil tattoo tucked deep in one of your old
portfolios is kind of a right-of-passage as a tattooer.
Posted by , Published at 10:58 AM and have
