Legal Guide For Tattoo Artists in Virginia
This guide breaks down the pertinent statues and regulations one needs to know when starting a tattoo business in Virginia. It also provides some insight into copyright protection of tattoo art in Virginia.
RegulationsThe Board of Barbers and Cosmetology is a vital resource for tattoo artists regarding the information they will need to obtain their license and regarding the standards of the practice. You should obtain a copy for reference prior to setting up your business.
• Part I. Offers important definitions for tattoo artists including terms such as “Aseptic technique” “limited term tattooer” or “sterilization area.”
• Part II. States the general requirements necessary for tattooers, limited term tattoers, permanent cosmetic tattooers, or master permanent cosmetic tattooers (all defined above) to receive a license.
• Part III. Sets forth the fees involved in obtaining a license.
• Part IV. Sets forth information regarding license expiration, renewal and reinstatement.
• Part V. Sets forth information/requirements regarding tattooers desiring to enroll in the tattooing mentorship program or desiring to be an apprenticeship sponsor.
• Part VI. Sets forth the standards/requirements for operating a tattooing school.
• Part VII. Sets forth the standards/requirements for operating a permanent cosmetic tattooing school.
• Part VIII. Sets forth the standards of practice.
The StatutesA. Va. Code §54.1-700 et seq.: Board of Barbers and Cosmetology
This statute defines key terms related to the tattoo industry. They are as follows:
• Tattoo parlor: Any place in which tattooing is offered or practiced
• Tattoo School: A place or establishment licensed by the Board to accept and train students in tattooing
• Tattooing: The placing of designs, letters, scrolls, figures, symbols or any other marks upon or under the skin of any person with ink or any other substance, resulting in the permanent coloration of the skin, including permanent make-up or permanent jewelry, by the aid of needles or nay other instrument designed to touch or puncture the skin.
• Tattooer: Any person who for remuneration practices tattooing
B. Va. Code §15.2-912: Regulation of Tattoo Parlors and Body Piercing Salons
• Any location may by ordinance regulate the sanitary conditions of the personnel, equipment and premises of tattoo parlors and body-piercing salons an specify procedures for enforcement of compliance with disease control and disclosure requirements of § 18.2-371.3
• For the purpose of this section, “tattoo parlor” means: any place in which a fee is charged for the act of penetrating the skin to make a hole, mark, or scar, generally permanent in nature.
C. Va. Code § 18.2-371.3: Tattoo and Body Piercing of a Minor
• No person shall tattoo or perform body piercing for hire or consideration on a person less than eighteen years of age, knowing or having reason to believe such person is less than eighteen years of age except (i) in the presence of the person's parent or guardian, or (ii) when done by or under the supervision of a medical doctor, registered nurse or other medical services personnel licensed pursuant to Title 54.1 in the performance of their duties.
• In addition, no person shall tattoo or perform body piercing on any client unless he complies with the Centers for Disease Control and Prevention's guidelines for "Universal Blood and Body Fluid Precautions" and provides the client with the following disclosure:
o 1. Tattooing and body piercing are invasive procedures in which the skin is penetrated by a foreign object.
o 2. If proper sterilization and antiseptic procedures are not followed by tattoo artists and body piercers, there is a risk of transmission of blood borne pathogens and other infections, including, but not limited to, human immunodeficiency viruses and hepatitis B or C viruses.
o 3. Tattooing and body piercing may cause allergic reactions in persons sensitive to dyes or the metals used in ornamentation.
o 4. Tattooing and body piercing may involve discomfort or pain for which appropriate anesthesia cannot be legally made available by the person performing the tattoo or body piercing unless such person holds the appropriate license from a Virginia health regulatory board.
• A person who violates this section is guilty of a Class 1 misdemeanor.
Copyright InfringementVirginia courts recognize a protectable copyright in tattoo art designs. For example, in Tattoo Art Incorporated v. TAT International LLC, (4th Cir. 2012)( http://federal-circuits.vlex.com/vid/tattoo-art-incorporated-tat-international-llc-410252214) the 4th Circuit held that Tat International LLC infringed on tattoo art designs made by Tattoo Art, Inc. and breached a contract governing the use of Tattoo Art’s designs. Tat International infringed copyrights on Tattoo Art’s designs by re-coloring and using some of the designs from Art’s “original collection” in ways not specified by the contract between the two parties, which allowed International to use some of Art’s designs for limited purposes. International also breached the contract between the two parties by failing to make required accounting and royalty payments.
It is important to note that this case involved a mixture of both registered and non-registered designs, and therefore a question arises whether jurisdiction only exists over the registered designs. In making this determination, Judge Davis followed Supreme Court precedent and found that jurisdiction existed over all claims. Registration is a precondition for maintaining a suit for infringement but is not jurisdictional. Based on the 24 registered marks that were infringed, the court made 24 statutory damage awards of $20,000 each, for total statutory damages of $480,000. The court held that there was no entitlement for infringement of unregistered designs.
Another interesting issue that came up in this case was that Tattoo Art registered its designs in books of 50, which were not copyrighted as compilations. This triggered the question of when copyrighted works are considered compilations for purposes of determining statutory damages, and thus this case goes into that analysis. Ultimately the statutory damages were awarded based on each individual registered design.