Wednesday, 22. May 2024

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Tattoos and the Law

How can you tell that you are getting old?

Maybe because tattoos don´t mean anything to you.

In the past, when I was around 20, only people who belonged to a certain milieu had tattoos. Sailors and drug addicts, for example. Or prison inmates. Popeye with an anchor on his muscular upper arm. Or with an arrow through his lonely, broken heart. …

Today, on the other hand, even model girls “from a good family background” wear a little heart or an arrow or some combination of numbers on their ankle, forearm or elsewhere.

I have no appreciation for that. From my point of view, tattoos are banal signs without deeper meaning and often without aesthetic value. Most of these motifs you would not even want to hang on your wall for a week. Why have something like that engraved on your skin for a lifetime, I don’t understand.

But maybe it’s a playful way of dealing with evil? Take a walk on the wild side. Good girl gone bad. … Like the reputable older lawyer or judge who listens to gangster rap in the evening and wears ripped (used, faded, destoyed) jeans on the weekend, or sneakers without laces. Just like in jail.

But tattoos also have a legal component, and this is what we want to take a closer look at now.

1. Is tattooing a bodily injury?

A tattoo „goes under the skin“ and therefore constitutes an intentional bodily injury in the sense of § 223 of the German Criminal Code (StGB).

Ouch! But do not immediately cry out now, dear tattoo artists. A physician does not fare any better. A medical intervention, for example that of a surgeon, also fulfills the legal elements of a bodily injury.

However, it is not illegal and therefore not punishable if covered by the consent of the person concerned.

But be careful, the consent must itself be effective.

There are reservations about the effectiveness of consent if the person concerned was under the influence of alcohol or drugs at the time of consent. In this respect, the degree of intoxication will be decisive.

In the case of minors, the consent of the legal representative, i.e. as a rule the parents, is (also) required.

2. What if the tattoo is not like you wanted it?

The agreement to produce a tattoo is usually a contract for work (§ 631 BGB).

According to this, the tattoo artist must perform the work, i.e. the tattoo, free of defects (§ 633 BGB). What is defect-free or, conversely, defective, depends on the specific agreement. And of course also on whether the performance meets the usual craft and hygienic requirements.

In the event of defective performance, the party concerned is entitled to the usual remedies (§§ 634 ff BGB). He or she can thus demand rectification, price reduction and/or compensation for damages.

A reversal, on the other hand, thus “money back, tattoo back”, would be difficult.

3. Tattoos and Copyright

Tattoo motifs can be protected by copyright. This is the case if they have a certain “creative value” or “Gestaltungshöhe”, that means if the tattoo is a personal intellectual creation in the sense of § 2 paragraph 2 UrhG.

Simple hearts or stars based on a template are generally not works protected by copyright.

However, there are of course much more complex motifs for which copyright protection is certainly possible. In such a case, the following applies:

a) Tattoo artist/original copyright holder

The tattoo artist must ensure that his work does not infringe on the rights of others. Tattooing another artist’s copyrighted work under the skin of a customer may therefore constitute a copyright infringement.

In this context, the right of so-called free use (§ 24 UrhG) is sometimes invoked. One speaks of free use when the personal features of the original work fade and those of the new artist become predominant.

Sometimes it is also argued that the transfer of a work into another genre of work already constitutes a free use per se. I have my doubts about this and would rather reject this view. The adaptation of a novel (book / film), for instance, is clearly not recognized as free use.

Therefore, the tattoo artist should always make sure that he/she does not use any other copyrighted works.

To be exempted by the customer internally is better than nothing, but of course does not provide absolute protection. Because an exemption works only vis-a-vis the customer. If the tattoo artist is legally prosecuted by the copyright owner because of the copyright infringement he committed, then he cannot defend himself by arguing  that the customer wanted the tattoo, or that the customer has signed a declaration of exemption. This would only be relevant for a recourse of the tattoo artist against the customer.

b) Tattoo artist / customer

And what about the legal relationship tattoo artist / customer? Let’s assume that the tattoo artist has created his own copyrighted work through his tattoo. Does this copyright then pass to the customer?

Yes and no. This is basically the same as with a picture. The customer becomes or remains of course “owner of his own skin”, under civil law the tattoo belongs to him (§ 903 BGB).

The copyright to the work, however, remains with the artist, in this case, the tattoo artist. The customer therefore does not automatically receive, for example, the right to photograph the tattoo and exploit it commercially. Basically, the customer would not even be allowed to change or destroy the work without first asking the tattoo artist; because edits and transformations require the consent of the author according to § 23 UrhG. Here, however, in my opinion, one can and must assume an implied agreement between tattoo artist and customer, according to which the tattoo artist allows the customer from the outset to remove the tattoo later or to have it removed.

But there are also more complex cases. Consider the “full body tattoos” of a media star like Justin Bieber. Insiders probably know from whom he got his tattoos. If Justin Bieber now decides to have the tattoos of Tattoo Artist 1 revised by Tattoo Artist 2, so that one no longer knows in the end who has made which contribution, then the rights of Tattoo Artist 1 may well be affected. Because he may not like the revisions of his successor and does not want them to be attributed to him by the “community”.

So tattoos and copyright, that is, as we lawyers like to say, an “exciting” topic.

4. May an applicant in the public service be rejected because of a tattoo?

You are probably familiar with the rulings of the Berlin courts on whether it is permissible to reject a police candidate solely because he or she visibly wears a tattoo, for example on the arm.

Here, the case law goes in the direction of saying: Tattoos have arrived “in the middle of society”. So a police candidate may not be rejected solely because of a neutral tattoo.

But there are of course borderline cases conceivable.

For one thing: If the tattoo is not value-neutral, but, for example, expresses a certain attitude, then this can of course justify a rejection. Think for example of a swastika tattoo. Of course, such a tattoo is not acceptable, at least not in the public sector.

In my opinion, one must also pay attention to the specific function of the office holder. Imagine the presiding judge of a higher criminal court wearing a face tattoo in the style of Mike Tyson. As far as we know, such a case has not yet become practically relevant, but just imagine it. In my opinion, such a publicly displayed tattoo could well affect public confidence in the administration of justice. What will the victim of a violent crime think if the defendant and the judge have the same tattoo on their face?

On the other hand, of course, one must be careful. If the defendant and the judge are both bald, this will probably not justify a rejection on grounds of bias. …

5. Conclusion

For me, the topic of tattoos shows very nicely that views on what is acceptable or even cool change over time, and quite considerably.

I would say: Tattoos are a trend that will pass. It’s probably the same as with haircuts: Today, people (again) wear their hair long in the front and short in the back. At least when there’s still enough of it in the front. And not the other way around (mullet), as in the eighties.

Watch out, in 30 years your granddaughter will call out to you in dismay: “Grandma, what’s that scribble on your arm? Didn’t you have any paper (or iPad) to draw on back then? …

Dr. Wolfgang Gottwald
Rechtsanwalt/Attorney at Law

Attorney at Law

Leopoldstraße 51
80802 München

Tel.: 089/383 293-10
Fax: 089/383 293-13