Bad Tattoo; What To Do?

Bad Tattoo; What To Do?

                Tattoos have become a common part of our society.  When done correctly, they are truly an art form that allows an individual to express themselves in the way they want the world to see them.  Talking about your tattoos can be a great way to start a friendship.  They can be a way to show respect for people you love or memorialize events that are very important to you.  The fact that they are virtually permanent adds power to their message.

The rising popularity of tattoos has also created great opportunities for artists to make a living doing what they love.  They can do this working for themselves, or in a large shop.

What happens when the process of getting a tattoo goes bad?  Well, there are two basic ways that this can happen:

First:  There are health issues involved in getting a tattoo.

A tattoo artist owes their customer a duty to provide a clean, sterile, professional environment.  In Michigan, and most other states, tattoo providers are required to be licensed, meet state and local health requirements, and must pass inspections.  This is because the health consequences of a bad tattoo can be severe.  An unclean environment can lead to severe infections, scarring, and pain.  If you have suffered because of a failure by your tattoo provider to maintain a clean and safe environment, you may be able to recover for damages, including the pain and suffering it causes you.

Just as a tattoo provider has a duty to provide the proper environment, the customer has a duty to be sure he or she is dealing with a licensed, professional operation.   If you choose to use a non-licensed facility, it may be much more difficult for you to be compensated for any damages you might suffer.  The bottom line here is to be a professional if you are a tattoo artist, and deal only with professionals if you are a customer.

Second: There are aesthetic issues.

Sometimes people are unhappy with the way a tattoo looks.  Who is responsible in this situation?

If there has been an obvious mistake, like the misspelling of a word, or a backwards tattoo like the one in the case of this Chicago White Sox fan, http://www.suntimes.com/news/metro/2224458-418/tattoo-backward-suit-mystic-inked.html there may be a basis for a negligence suit as described above.

As a professional artist, the best ways to protect yourself and keep your client happy is to document the spelling of words before inking them, and have your client write them down and initial on a form their approval.  You should also show your client the stencil of the tattoo on their skin, and have them approve of it in writing before inking with permanent ink.

Sometimes it isn’t that simple.  Think of a case where someone wants a photograph duplicated in the form of a tattoo.  The artist does their best, yet the client is unhappy – maybe extremely upset- by the result.  Who is responsible for the cost of fixing or removing the tattoo is an open question.

The artist may honestly feel they did the best they could, and that the client got what they paid for, and that after touching the tattoo up, that client remorse is not their responsibility.  The client may feel that they were mislead by the artist’s assurances that the photo could be accurately duplicated. They may honestly feel that the tattoo is not at all like the photo, and that it is fair to have the artist pay for fixing or removing the tattoo, and perhaps other damages as well.  An agreement between the parties can’t be reached, and sometimes a lawsuit results.

A lawsuit of this type is generally covered by contract law.  In the simplest terms, a contract is an agreement between parties to do something in exchange for something else of value.  In this case, providing a tattoo in exchange for payment.  When one side doesn’t hold up their end of the deal, a breach of contract results, and the person that breaches can be held responsible for the consequences of the breach.  Often times, the goal of the court is to put the non-breaching party in the position they would be in if they had never entered the contract.

In a bad tattoo case, this would likely mean that if an artist is found to have not done a competent job of providing the tattoo, they could be responsible for the cost of fixing the tattoo at another shop, or for the process of removing the tattoo by laser or other method in a medical office.

It isn’t fair for an artist to overpromise, or say they can do something that they really aren’t sure they can do.  It is the client, after all, that has to live with the result.  On the other hand, it isn’t fair for the client to blame the artist for buyer’s remorse when they got what they asked for and simply changed their mind later. Sometimes the client changes their mind only after someone else tells them they don’t like the tattoo. Neither party really wins when it gets to this point.

The key for both is to communicate beforehand.  A great way to do this is to make it part of the release that the client signs before getting a tattoo.  Having the right language in the release to explain that a tattoo is an art form, and that the artist is providing his or her best effort as an artist in applying the art the client chooses, cuts down on misunderstandings.  Having the client sign off on the spelling of any words to be applied is also a good idea.  It is also a good idea to put language in your release where the client acknowledges having seen and approved the stencil of the artwork on their skin before it is permanently applied.  Finally, having the client and artist agree in writing beforehand what the remedy will be if the client is not satisfied with the way the tattoo looks like helps make it clear what was agreed to, and makes it less likely that a professional artist will be sued and possibly held liable for removal costs when a client gets buyer’s remorse. The client needs to “think before they ink”, and it is always ultimately their decision whether or not to move forward with a tattoo.  The right release form helps an artist show that that is exactly what happened.

Your attorney can help you craft a release that is right for your situation, or help you if you are the victim of an unprofessional tattoo artist.

If you’d like to discuss anything raised here, feel free to contact me at (616) 451-400 or james@rodenhouselaw.com

THE CONTENTS OF THIS BLOG ARE NOT LEGAL ADVICE. Everything posted here is for educational or entertainment purposes only, and is not to be construed as legal advice. Do not take any action, postpone any action, or decline to take any proposed action based on this information without first engaging the representation of me or another qualified attorney. Nothing posted on Facebook, Twitter or on any website is to be construed in any way as legal advice.

DISCLAIMER: I am an attorney.  I am not your attorney, and therefore no communications between us are covered by attorney-client privilege unless you possess a signed document which states that I currently represent you as an attorney. In the case that such a document exists, the existence or waiver of attorney-client privilege shall be controlled by the signed fee agreement or engagement letter.

TAX ADVICE DISCLAIMER: Any tax advice contained in this communication (including attachments) is not intended or written to be used, and it cannot be used, by you for the purpose of (1) avoiding any penalty that may be imposed by the Internal Revenue Service or (2) promoting, marketing, or recommending to another party any transaction or matter addressed herein.

 

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