Who owns the ink? Reproduction of tattoos in film, photographs and video games

14 January 2020

The bearer of a tattoo understandably has a strong personal connection to the ink that is permanently embedded in their skin. In some cases, the tattoo becomes an integral part of that person's image and persona. As such, many tattooed individuals may be surprised to know that someone else may own the copyright in the tattoo that has become a permanent fixture on their body.

As tattoos become more common, courts are being asked to determine if copyright subsists in tattoos and if so, who can lay claim to that copyright. These decisions could have significant consequences for those tattoo bearers who want to exploit and monetize their own image. Major recording artists, professional athletes and movie stars have had to defend the promotional use of their own tattoos, and in some cases, their own use of the tattoos of others.

For example, Cardi B is currently being sued for the use of a photograph of a tattooed individual on her album cover. In 2011, the artist who created Mike Tyson's famous facial tattoo sued the makers of The Hangover Part II over the reproduction of the tattoo on actor Ed Helms' face in the film. That case settled out of court. In 2005, the artist who designed and inked David Beckham's famous tattoos threatened to sue after Beckham planned to feature them in an advertising campaign without permission.

These issues also arise in the context of eSports, where many popular games include depictions of hyper-realistic avatars that may be based on actual people, including their real-life tattoos. eSports titles that feature real-world sports often draw on the popularity of renowned athletes, many of whom are visibly inked. Game developers should consider who owns the copyright in these images if they intend to replicate real tattoos in their game animation.

In 2009, the issue of copyright in a tattoo was before the Belgian Court of Appeal. In its decision, the Court decided that while the tattoo artist did own the copyright in his tattoo design, this right was limited by the personality rights of the tattooed person. The Court found that the tattoo artist could not prohibit the bearer of the tattoo from having photos taken or otherwise displaying their tattoo.[1] An individual's right to self-determination superseded any copyright that the artist might otherwise have over their artistic work.

This issue has never been decided in Canada and while Canadian courts may consider foreign decisions useful, the persuasive value of this case may be somewhat limited because Belgian law differs significantly from Canadian. For example, in Belgian copyright law, there is a limited statutory right to privacy which includes the right to control one's own image. This right is not a part of the Canadian Copyright Act.

In Canada, the Copyright Act provides that the owner of the copyright has "the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever" (among other rights).[2] This means that if a tattoo artist owns the copyright in a tattoo, that tattoo may not be reproduced without the permission of the artist.

The Copyright Act protects original artistic works including paintings, drawings, engravings, works of artistic craftsmanship and others.[3] It does not restrict the medium on which the work is printed. As works which find expression in a visual medium, a tattoo may easily be categorized as an "artistic work" and thus afforded copyright protection.[4] Both in Canada and abroad, skilled tattoo artists are highly sought after for their particular artistic talents.

An artist also has moral rights in their work, which include the right to the integrity of the work and the right to be associated with the work as its author. [5] An artist's moral rights are infringed when their honour or reputation is prejudiced by the distortion or modification of their work or by the use of their work in association with a product, service, cause or institution.[6]

The moral rights of the artist may play a role in future litigation if tattoo artists are recognized as owners of the copyright in their tattoos. For example, moral rights may be asserted if an individual with a prominent tattoo featured in an advertising campaign promoting an unsavoury or discriminatory organization. Moral rights could provide grounds for the artist to sue to prevent the tattoo from being used on promotional material. These issues are of particular relevance in Canada, where moral rights cannot be assigned, only waived.[7]

In Belgium, the Court of Appeal drew a distinction between the design of the tattoo in the abstract and the physical tattoo applied to the body of an individual, finding that once the drawing had been applied to the skin of an individual, the artist would have no moral rights over the work. Any tattooed person should have the right to remove or alter their tattoo without the permission of the artist.[8] It remains to be seen whether a Canadian court would concur.

The Canadian Copyright Act specifies that the first owner of copyright is the author of the work, subject to certain exceptions.[9] Although the tattoo artist is an obvious candidate for "author of the work", many tattoos are the product of a collaborative creative process between the tattoo artist and the tattoo bearer. Where the tattoo bearer (or another individual) contributes their skill and judgment to the creation of the work, the tattoo may be a work of joint authorship, where both parties are initially joint owners of copyright.[10]

Further, there are clear policy reasons that oppose the finding that copyright can be enforced with regard to a work that is permanently affixed to the body of a human being. These considerations may prompt a Canadian court to find that even if tattoo artists own the copyright in their tattoos, there is also an implied license granted to the bearer of the tattoo to exploit their own body, and everything that is permanently embedded in it. The limitations of such a hypothetical implied license would be subject to the determination of the court.

Although these cases present interesting legal issues, practically speaking, ownership of copyright in tattoos will most likely affect only those tattoo bearers whose image and likeness are valuable and monetizable assets, such as celebrities and influencers. If this describes you, you should consider seeking legal advice to protect yourself from potential copyright claims.

[1] JDH v JM, (2009) 2007/AR/912 (Juridat) at para 9 (Ghent CA).

[2] Copyright Act, RSC 1985, c C-42, s 3.

[3] Copyright Act, RSC 1985, c C-42, s 2.

[4] DRG Inc v Datafile Ltd (1987), [1988] 2 FC 243 at para 15, 18 CPR (3d) 538.

[5] Copyright Act, RSC 1985, c C-42, s 14.1.

[6] Copyright Act, RSC 1985, c C-42, s 28.2(1). See also Thomson v Afterlife Network Inc, 2019 FC 545 at paras 39-48.

[7] Copyright Act, RSC 1985, c C-42, s 14.1(2).

[8] JDH v JM, (2009) 2007/AR/912 (Juridat) at para 10 (Ghent CA).

[9] Copyright Act, RSC 1985, c C-42, s 13(1).

[10] Copyright Act, RSC 1985, c C-42, s 2.

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