Flash2xs.com, LLC Position Statement on Copyright Infringement
Broadly, a copyright is the exclusive right of an author or artist (or their assignee or sometimes, their licensee) to make copies (or to perform, or to make derivative works) of the protected work. To be an infringement, the copyright owner needs to demonstrate two things:
- Access to the work by the accused (to show the accused work is not "original"), and
- Substantial similarity (i.e., that more than an insubstantial portion of the original work was copied).
Also, we explicitly state on the TattooFinder.com website during a purchase that all artwork on the site is copyrighted, and all purchases made through the site are for a personal use license. All customers must click the checkbox to “sign off” that they have received this notice:
All designs and images on this site are protected by federal and international copyright laws and treaties. All rights are reserved. Any design licenses purchased at this site are for your personal use as reference to apply a single actual tattoo on the skin. No one may sell, resell, copy, distribute, and/or in any way make use of the images and designs displayed on this website in any way other than described above without the express written consent of the copyright owners and/or their licensed agent. Anyone who violates any of the exclusive rights of the copyright owner and/or licensed agent may be criminally prosecuted under section 2319 of title 18, United States Code, including imprisonment for up to 5 years for the first offense and subjected to civil and criminal penalties of up to $150,000.00 per violation.
Addressing the second point demonstrating infringement of copyright, “substantial similarity” is of course difficult to quantify. Oftentimes in the tattoo industry we hear that a minimum 50% change of artwork is required to avoid a copyright violation of tattoo flash. There is no mention of a “50% change” figure in federal copyright laws. For example, our legal team has made this observation about the “50% change” figure:
“All things considered, we can't imagine that a work of art that contains 50% of the protected work, in particular where the artist has been determined to have had access to the protected work, can be other than an infringing copy.”
This could possibly be interpreted that for someone to avoid a copyright violation of our artwork, they would need “something MORE than a 50% change.” Again, the relativity issues comes into play -- how does one quantify “something more?”
The clearest guidance that we can therefore give on this issue is to simply not use any of our designs as a basis for trying to create artwork for commercial use. If in our opinion, we see artwork that we deem to have “substantial similarity” to any of our designs, we would most likely initiate legal action. To avoid costly and distracting litigation, we would recommend that you contact Flash2xs.com, LLC about setting up a licensing agreement for the desired rights for commercial use.