Creativity is an extremely personal thing. All true artists are protective of their work. It’s a part of them, an extension of their soul. Tattooists are no exception. Copyright laws are intended to protect artists and inventors from having their ideas stolen, their profits suffer and their art abused. However, the idea of copyrighting tattoo designs is not something tattooists are ready to jump on board for. No one is ever anxious to bring lawyers into the mix, and it’s very questionable whether or not copyrighting would even effectively protect custom work.
Even flash, the sheets of tattoo designs that paper the walls of just about every tattoo shop on the planet started its existence as someone’s original work. Tattooists buy the sheets from a dealer, probably the same supplier they get the rest of their stuff from. When that deal goes down, it’s not art in the sense of wall décor they are paying for; they could go to any discount store for that. It’s the right to reproduce the design to a stencil and tattoo it on to a customer. The legal principal behind flash is the same as selling a book that you brought at a bookstore. You paid for the right to own that copy of the book and you have the right to sell it.
Theoretically, custom work is an original design intended for only for one person. The vast majority of the time, all custom designs start out as drawings on actual paper before being applied to someone’s skin. So for the purposes of copyright law, the tattoo itself is actually a reproduction. Since it’s typically the same artist who both draws and applies the tattoo it’s not that big of a deal.
The law is not super clear on what constitutes an infringement of copyright when it comes to tattoo reproduction. It’s impossible to make any body art the exact same way twice. Bodies are shaped differently, ink takes to differently to various skin types, the colored pigments with mix up a little bit differently each time, etc. So in that sense, tattoos can’t be replicated. Even if another tattooist copies your original work, it’s still just that, a copy. That’s like a professional band covering another’s song. It’s just their version of it.
On the other hand, the law used the following phrase: “substantially similar.” That means the reproduction in question doesn’t have to be exactly perfect, it just has to be similar. Under that logic, the design can be colored entirely differently, and embellished upon, but still be considered “substantially” the same enough to
support a law suit. To the layman, it sounds like the viability of such a suit depends on who is interpreting what constitutes as substantial.
Under copyright law, a work can technically be very much the same as another and still be considered original. For example, innumerable musicians have recorded Beatles songs over the years, and even though it’s been done so many times, one version of “All You Need is Love” is legally just as good as another (no accounting for taste, of course).
So, to the average person it seems that copyright laws would be much more user friendly for tattooists, and the rest of the creative community for that matter, if it were the spirit of the law and not the letter of the law that mattered. For the most part, the tattoo industry regulates itself and seems to try and keep it that way by not raising much of a fuss. Law suits involving tattoos are not terribly common and professions who make up the industry don’t seem to be bothered enough by others appreciating their work to start filling up the court system. It may be in part because they think doing so would be just like inviting the government in to regulate them.