Tattoos are becoming increasingly common and tattoo parlours now offer customers a broad spectrum of designs to choose from or the option to request a custom design. One interesting question that arises in this context is whether a tattooed person owns the copyright in their tattoo. Unless the copyright in the tattoo was assigned in writing, the answer is no.

Although individuals often think that they can do what they like with their tattoos, technically, they cannot. A tattoo is classified as an artistic work under the Copyright Act and therefore only the owner of the work may reproduce or adapt it. As such, every time a person takes a picture of their tattoo and posts it on social media, they are infringing the copyright of the work's owner, as this constitutes a reproduction of said work.

The same principles apply when requesting a custom design based on an image on the Internet – for example, the Rolling Stones logo. Although it may be adapted and thus considered a new work, it would still be infringing the copyright of the original work's owner, as this constitutes an adaption and an infringement of the original work. When in doubt, an original work should be created without reference to any other works and the artist should assign the copyright in the work in writing – if they are happy to do so.

Although copyright law may not be the first thing on someone's mind when visiting a tattoo parlour, it is something to consider. Otherwise, they may be in for some expensive laser surgery.

For further information please contact Robin Richardson at KISCH IP by telephone (+27 11 324 3000) or email (robinr@kisch-ip.com). The KISCH IP website can be accessed at www.kisch-ip.com.

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