Canada: Votre tatouage enfreint-il le droit d'auteur ?

Pourriez-vous être poursuivis pour avoir demandé à un tatoueur de reproduire sur votre peau l'image de Garfield ou d'un dragon que vous avez trouvé sur Pinterest ? Claudette van Zyl, stagiaire, s'est penchée sur la question. Bonne lecture !

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Is my tattoo infringing copyright?

The intersection between tattoos and copyright law has made its way into the spotlight over the past few years. High profile cases in the United States and Canada include the 2011 claim against Warner Bros. Entertainment Inc. for the unauthorized reproduction of Mike Tyson's iconic face tattoo on the face of actor Ed Helm in the film The Hangover 2; the 2012 claim by Montréal model Rick Genest (better known as "zombie boy" for the skeletal body art covering him from head to toe) against Twentieth Century Fox Television for featuring a character wearing skeletal body makeup in an episode of the television series American Horror Story; and more recently, the lawsuit filed by Solid Oak Sketches over the unauthorized use of copyrighted tattoos in the videogame NBA 2K16.

The recurring fact pattern in these cases seems to involve a famous person's tattoo being used without the copyright holder's permission, and in pursuit of a commercial endeavour (whether it be in the film, television, or video-game industry).

Does this mean that copyright issues involving tattoos are only relevant to people living in the limelight, or can copyright also affect how ordinary people get and live with their tattoos?

Copyright 101

Before going further, it is worth mentioning that copyright is among the areas of Canadian law in which there is the greatest discrepancy between what is legally permitted and what is commonly done in practice. This discrepancy can of course be attributed, at least in part, to the proliferation of technology facilitating illegal copying as well as the logistical difficulties of enforcing copyright. It is easier than ever to copy works of art and music found on the Internet; but the ease by which one can copy, and the fact that it has become common to do so, does not in fact make the practice legal.

Copyright is the right of an owner to prevent unauthorized copying or use by others.1 In Canada, it generally lasts the lifetime of the author of the work, plus fifty years after their death. During this time, the use of copyrighted material without the authorization of the copyright holder constitutes infringement, unless the use falls into one of a few, limited exceptions – such as for educational purposes, satire, or journalistic reporting. Once the copyright period has expired, the work becomes part of the public domain, meaning that anyone can use it.

Can my tattoo infringe copyright?

Canadian copyright law does not make distinctions regarding the medium on which something is illegally copied. In other words, there is no statutory exception for works copied onto one's skin as a tattoo. Therefore, getting a tattoo of an image protected by copyright without the authorization of the copyright holder may constitute infringement.

If a tattoo does infringe copyright, an important question becomes the following: who infringed the copyright – the customer or the tattoo artist?

Statutory law and jurisprudence clearly places at least some liability for infringement on the tattoo artist. By tattooing the unauthorized copy onto a person's skin, he or she is in direct contravention of subsection 3(1) of the Canadian Copyright Act, which prohibits any individual from producing or reproducing copyrighted work or any substantial part thereof without the authorization of the copyright holder. The tattoo artist's knowledge (or ignorance) of the existence of copyright is irrelevant in determining whether infringement occurred.

The liability that the tattoo artist's client might face is somewhat more fact-dependant. This is because if a court finds that the client "authorized" the illegal copying of a copyrighted image, he or she would likewise be in contravention of subsection 3(1) of the Copyright Act, which also prohibits the authorization of acts constituting copyright infringement. Much therefore depends on the relationship between the client and the tattoo artist, as well as the client's role in determining what image will be tattooed onto his or her skin.2 If the client was the person who provided the copyright-protected image and instructed the tattoo artist to ink it onto their skin, chances are higher that they would be considered to have "authorized" the illegal copying. If the client merely provided the tattoo artist with a few general instructions – for example, "please draw me a red bird", and the tattoo artist in turn proceeded to make an unauthorized copy of someone else's work, it could be easier to demonstrate that no illegal "authorization" on the part of the client took place.

What happens if my tattoo infringes copyright?

Given the difficulty of enforcing laws against copyright infringement, a private person who gets a copyright-protected image tattooed onto their body without the requisite authorization is unlikely to be met with a legal claim. The likelihood of facing no consequences, however, does not make the practice legal. If a successful claim were to be brought against a tattoo artist or client, a variety of remedies become available for the court to impose.3

The most likely remedy that could be imposed against a private individual or small-scale tattoo artist found to violate copyright is compensatory damages, to which punitive damages and costs may be added. The Copyright Act provides two mutually exclusive regimes by which compensatory damages may be calculated.

Under subsection 35(1) of the Copyright Act, copyright infringers are held liable for the damages suffered by the copyright holder due to the infringement as well as for the profits resulting from the infringement. Thus, a tattoo artist who infringed copyright would be liable to the copyright holder for any loss in revenues incurred by the copyright holder as a result of the infringement; as well as for the profit made by the tattoo artist as a result of inking that copyright-infringing tattoo.

Proving damages under section 35 can be onerous, however, as demonstrating damages or profits may require submitting expert evidence and examining or cross-examining witnesses. Therefore, in practice, the parallel regime of statutory damages provided under section 38.1 of the Copyright Act may be favoured. A tattoo artist having inked an image that infringes copyright onto a paying customer would be liable for an amount between $500 and $20,000 under this regime. To set the precise amount, the Court must consider relevant factors such as the good or bad faith of the defendant, the conduct of the parties before and during the proceedings, and the need to deter other infringements of the copyright in question.

Footnotes

1. 27(1) Copyright Act : It is an infringement of copyright for any person to do, without the consent of the owner of the copyright, anything that by this Act only the owner of the copyright has the right to do.

2. See CCH v Law Society of Upper Canada, 2004 SCC 13 at para 38.

3. See, e.g. Section 34 of the Copyright Act, which provides for "all remedies by way of injunction, damages, accounts, delivery up and otherwise that are or may be conferred by law for the infringement of a right".


About Norton Rose Fulbright Canada LLP

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For more information about Norton Rose Fulbright, see nortonrosefulbright.com/legal-notices.

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