As tattoos have become increasingly common, the question of whether copyright subsists in a tattoo and what that means has come to the forefront of the copyright conversation. The deep personal connection that many people feel towards the permanent ink on their skin does not change the fact that the authorship and ownership of most tattoo designs most likely does not reside with the bearers of the tattoos, but rather with the tattoo artists. This fact creates a number of issues that can range from relatively simple problems, such as tattooists being prevented from using other tattooists' designs on others, to complicated issues, such as large video game companies being unable to recreate accurate depictions of real tattooed celebrities who have given the companies permission to use their likenesses in games.

Part I of this blog post will explore the various areas in which issues arise in relation to tattoos and copyright. It will also analyze the Canadian Copyright Act and the way that foreign courts have dealt with these issues in order to make some predictions regarding the way in which Canadian courts, which have not yet dealt with any cases on copyright in tattoos, might decide on these issues in the future. Part II will delve into the steps that a tattooed individual or company might take before recreating tattoos in order to avoid encountering some of these potential legal pitfalls.

The Copyright Act and Tattoos

The process of tattooing is a creative process. Tattooists are referred to as tattoo artists because they create original designs, which they personally imprint on an individual's skin. As per section 5(1) of the Copyright Act, copyright subsists in all original artistic works, subject to certain residency requirements and other limitations. Despite the fact that Canadian courts have not yet ruled on tattoos and copyright, original tattoos would most likely be protected as artistic works under the Copyright Act. A tattoo that merely duplicates or copies a pre-existing design may not have the requisite originality for protection under the Act.

One of the most noteworthy implications of copyright subsisting in tattoos can be found in section 3(1) of the Copyright Act, which states that "copyright, in relation to a work, means the sole right to reproduce the work in any substantial part thereof in any material form whatever." The significance of this provision is that anyone wishing to recreate the tattoo in any form is prevented from doing so unless they have acquired from the copyright owner the right to do so, whether that form is tattooing the same design on another person's skin or recreating the design in a digital format for the purposes of creating an online avatar of the person who bears the tattoo.

Legal Issues with Copyright Subsisting in Tattoos

The simplest question regarding copyright and tattoos is whether another artist, including another tattooist, can recreate an original tattoo either in another artistic format, such as with a pen and paper, or in the same format as the original inked onto another person's skin. As indicated above, the answer is most likely no. A tattooist should probably avoid recreating exact photos or symbols that they do not own the copyright to, unless they have been given permission by the copyright owner of the work. This copyright rule almost undoubtedly extends to artists or tattooists recreating other tattooists' works.

A more complex issue is the question of whether tattoos can appear in photographic and video content. A decade ago, S. Victor Whitmill, the tattoo artist who created Mike Tyson's face tattoo, brought a lawsuit against Warner Bros. for recreating said tattoo on actor Ed Helms' face in The Hangover Part II. This lawsuit ended up settling, so what the courts might have decided will never be certain. However, just as tattooists, and any other artists, should not recreate other tattooists' designs, so to should Warner Bros. have probably refrained from recreating a copyrightable work onto Helms' face to avoid any potential legal claims. Refraining from actively recreating copyrightable tattoos is especially prudent if the tattoos are going to appear in widely disseminated photographs or filmography that could generate financial gain from the use of an individual's tattooed image because copyright owners have the right to a monopoly over the financial gains from their work.

It is important to note that Tyson appeared in both the first and second movie in The Hangover franchise and that the tattoo artist did not sue Warner Bros. over the inclusion of the original tattoo on Tyson's face on screen. Due to the fact that there is no jurisprudence in this area, there is only speculation as to whether the appearance of an original tattoo like Tyson's in a movie could constitute copyright infringement. In Canada, it is possible that the appearance of such a tattoo in a video format could be protected under the incidental inclusion exception in section 30.7 of the Copyright Act. This exception allows for the use of copyrighted works in certain situations where the use was incidental and not deliberate. A filmmaker could potentially argue that unintentionally including a tattoo in a movie simply because one of the actors is tattooed is incidental and not deliberate.

Additionally, in Canada it is possible that the appearance of an original tattoo in a video could be defended by the claim that the tattooed individual has an implied copyright license for this type of use. An implied license is not expressly granted, but can be inferred when the owner and the user have a shared understanding that the user has consent to use the work. If there is evidence that both parties were of the understanding that a tattooed individual could appear in pictures and videos without covering up their tattoos, there is an argument to be made that there was an implied license for this type of use.

Another consideration in allowing tattoos to appear in other works is the fact that not only does a copyright owner have the right to the financial gains from their work, but an author also possesses moral rights, which include the right to the integrity of their work and the right to be associated with their work. Although it would probably require the tattoo to play a very prominent role in the work, a tattoo artist could theoretically claim that the integrity of their work, and thus their moral rights, have been infringed if a public figure with one of their tattoos features in a distasteful commercial venture or offensive motion picture. As such, high-profile individuals may have to consider the legal implications of their tattooed image featuring prominently in a commercial venture, even if the tattoo featured is the original and not a recreation. However, it should be noted that the right to be associated with a work applies only in circumstances where it is reasonable to do so and as such, it is possible that it would not be considered reasonable to have to identify the author of a tattoo on an actor just because the tattoo appears briefly in a commercial or film.

A final and emerging copyright issue in relation to copyright and tattoos is the recreation of tattoos on digital avatars. This is primarily an issue in the video game world, where public figures' likenesses are often recreated in games. Athletes in particular have often been recreated by companies like 2K Games Inc., which is responsible for popular video games such as NBA 2K and WWE2K. While tattoo artists can potentially claim copyright infringement when digital reproductions of their works are created, athletes often feel that their tattoos are such an integral part of their image and personality that to omit them would mean that their digital avatars could not truly represent them.

This juxtaposition of opinions on tattoos and digital recreations has reared its head in both the media and in the courts over the past several years. 2K Games itself has been at the receiving end of multiple lawsuits in the US related to their digital reproduction of athletes' tattoos for the purposes of realism in their games. These lawsuits show a clear divide in the opinions of different courts regarding whether tattooists' rights can be infringed by the recreation of their tattoos in a digital medium.

In the earlier of the cases involving 2K Games Inc., Solid Oak Sketches v. 2K Games Inc. and Take-Two Interactive Software Inc., the court determined on summary judgement that the defendants had an implied license to use the tattoo artists' tattoos, that the use of the tattoos constituted fair use, and that the use was minimal within the overall context of the game. However, another court decided otherwise in a later, but similar case called Alexander v. Take-Two Interactive Software Inc. and 2K Games Inc.. In this second case, the court declined to resolve the case on summary judgement because there was no implied license to use the tattoo artists' tattoos, the issue of fair use was too complex to be decided on summary judgement, and the recreation of the full tattoos was not minimal.

The facts in both cases were different, but this divide in court opinion on a very similar issue clearly illustrates the difficulties there are in this as of yet fairly undecided area of law. Canadian courts could end up following the logic of either one of these US courts and as such, tattooed individuals and companies looking to recreate tattoos onto digital avatars should consider the possibility that they may face legal consequences for infringing on tattooists' copyright.

In Part II, this blog post will discuss some of the options available for tattooed public figures and other individuals or companies who could face these types of legal issues related to copyright and tattoos.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.