Whether you appreciate them or not, most people would agree tattooing is an art form. Original artistic works, such as paintings, engravings and drawings, are protected under the Canadian Copyright Act. It is reasonable to assume the courts will, when the time comes, extend the same protection to tattoos — U.S. courts have held that copyright applies to original tattoos.
Assuming Canadian courts follow the U.S. approach, copyright in a tattoo would provide an exclusive right to reproduce that tattoo or any substantial part thereof. As a result, infringement would arise from an unauthorized reproduction of the tattoo. Examples could include a tattooist creating a tattoo by copying an existing artwork or another tattooist’s tattoo. As a result, tattooists should avoid copying protected images or tattoos.
Taking a photograph of a tattoo could also be an infringing reproduction. Similarly, infringement may occur from displaying the tattoo in a movie or on avatars in a video game or the metaverse. For example, a jury in the Southern District of Illinois ordered a video game maker to pay a tattoo artist for displaying the wrestler Randy Orton’s tattoos in a video game. The U.S. decisions on tattoos appear to be fact-dependent: the same video game defendant successfully dismissed a different claim alleging infringement of tattoos of well-known basketball players whose likenesses were featured in the NBA 2K game. The claim was dismissed in part because of the minimal nature of the copying and a finding that the tattooist granted the players implied licenses to use the tattoos. Readers may also remember the lawsuit brought in the U.S. against the producers of The Hangover — Part II over the unauthorized reproduction of Mike Tyson’s face tattoo. The claim was, however, settled out of court.
So, who owns copyright in a tattoo? Generally, a tattooist would be considered the owner of the rights unless they were an employee when the work was created. In that case, the employer may be the owner. Anyone wishing to recreate or display a tattoo should obtain a license from the owner or acquire it by assignment. The tattooist also possesses moral rights in the tattoo, which include the right to the integrity of their work and the right to be associated with their work. A breach of moral rights is a separate claim to copyright infringement. In Canada, moral rights cannot be assigned, but they can be waived. So next time you get a tattoo, consider obtaining both a waiver of moral rights and a licence or assignment of copyrights from the tattooist. Anyone wishing to use their image in video games or in the metaverse should do this to avoid any legal claims in the future.
What is next for tattoos in Canada? We will likely have a decision from a Canadian court soon on copyright and tattoos, particularly as the use of avatars and the metaverse expands. Another important issue to consider is the appropriation of cultural elements in tattoos. Appropriation occurs when an element is taken from its cultural context and used in another. For example, what if a tattoo, which is protected by copyright, also includes Indigenous designs? The World Intellectual Property Organization is presently negotiating an international legal instrument intended to provide protection, through intellectual property law, for traditional cultural expressions such as designs, signs and symbols. This proposed legal instrument would arguably include Indigenous tattoos. However, the negotiation process has been ongoing for many years and is not expected to be resolved soon. In the meantime, the most likely method of resolving such unauthorized use would be through copyrights.
This article was originally published in BarTalk, by the Canadian Bar Association, BC Branch.
