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 CanadianCopyright 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 theNBA 2Kgame. 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 ofThe Hangover — Part IIover 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 inBarTalk, by the Canadian Bar Association, BC Branch.
Scott Foster is a lawyer at Seastone IP LLP, an IP litigation boutique in Vancouver
FAQs
Tattoo artists can also protect their original designs from copyright infringement by requiring clients to sign a contract.
How to tell if a tattoo is copyrighted? ›
Since tattoos are, by definition, fixed—Merriam Webster defines a tattoo as “an indelible mark or figure fixed upon the body by insertion of pigment under the skin or by the production of scars“—the threshold question in determining if a particular tattoo is protected by copyright is whether the tattoo is sufficiently ...
How does copyright work for tattoos? ›
The medium for tattoos is a person's skin, and it is legally implied to be able to photograph or record that person without issue. While tattoo artists have successfully won lawsuits to protect their IP, it is still up in the air if the reproduction of a tattoo is or is not considered fair use.
Who owns the copyright to a tattoo? ›
We can start with a simple fact: The U.S. Copyright Office declares that any creative illustration fixed in a tangible medium is eligible for copyright. This means that while the actual tattoo is paid for by the athlete or celebrity, the copyright for the artwork is owned by the tattoo artist.
What is the best way to avoid copyright infringement? ›
- Understand what copyright laws protect. ...
- Do not copy anything. ...
- Don't use any content without consent. ...
- Create unique content. ...
- Always get written copyright agreements. ...
- Make your copyright policy clear to customers.
Also, remember that good artists won't copy another artist's design so don't ask. Don't send them a picture of another artist's work and say “I want this tattoo”. Don't be surprised if the artist does not want to tattoo in a style that is not their own. Do share reference images for the subject matter you like.
Do tattoo artists draw their own designs? ›
Most tattoo artists will create their own tattoo flashes and designs. They will love being requested to draw and add their own artistic interpretation to an idea, or an existing reference.
How do you get artist permission for a tattoo? ›
If you want to use an artist's work for your tattoo, the first step is to contact the artist. If they grant permission or direct you to purchase a tattoo pass to buy the rights to their work, your next step is to contact your tattoo artist to check their policy on outside artwork.
Can a company sue you for tattooing their logo? ›
Can You Sue for Tattoo Copyright Infringement? Technically speaking under the current laws tattoos would most likely be considered copyrightable and therefore can be protected.
Can you get the same tattoo as someone else? ›
Some people think mimicking is the greatest form of flattery but putting it bluntly, it's disrespectful to the original tattoo owner, original tattoo artist and the artist you ask to copy it. In fact, it's one of the most despised requests tattoo artists get.
Kat Von D, a celebrity tattoo artist, won a legal battle in federal court on Friday when a jury ruled unanimously that her reproduction of a photo of the celebrated jazz musician Miles Davis in a tattoo did not violate copyright law.
Do tattoos break copyright? ›
Based on current law, some tattoos could infringe on copyrights. Generally speaking, the copyright holder must prove the copied work has a negative effect on the work's value or potential market.
Who approves tattoo ink? ›
While state and local authorities oversee the practice of tattooing, inks and pigments used in tattoos are subject to U.S. Food and Drug Administration oversight as cosmetics. The FDA takes action to protect consumers when safety issues arise related to the inks.
Is Mike Tyson's tattoo copyrighted? ›
In the case involving Mike Tyson's tattoo, the tattoo artist, S. Victor Whitmill, sued Warner Bros. for copyright infringement for the use of the tattoo in the movie The Hangover: Part II. In the movie, a character gets intoxicated, passes out, and wakes up with a replica of Tyson's tattoo on his face.
Why don t tattoo artists copy tattoos? ›
Most artists pride themselves on spending hours creating unique designs for their clients. If someone copies the original tattoo artist and puts the same tattoo on someone else, it can take value away from that person's work.
How do I avoid copyright when making a logo? ›
So, you must avoid any borrowed graphics in your logo design. The designers should be aware of the things that they cannot have copyrights over. These things include titles, names, slogans, calendars, symbols, variations of letterings or colorings, and measurement charts. Most of these are protected by trademarks.
How can you avoid copyright infringement artwork? ›
Learn: How to Avoid Copyright Images
- Understanding Copyright Law. ...
- Don't Take Any Images From the Internet. ...
- Take Images Free From Public Domain. ...
- Download From Google Changing 'Usage Right' ...
- Be Creative. ...
- Don't Trust on “Fair Use” ...
- Receive Permission. ...
- Give Credit.
