As detailed in Part I of this blog post, despite the fact that Canadian courts have not yet grappled with a case related to copyright and tattoos, the Copyright Act and foreign caselaw suggests that copyright very likely subsists in tattoos and that the rights to tattoos most likely reside with the tattoo artists who design and ink the tattoos on individuals' skin. This copyright can create a host of legal problems for tattooed individuals, particularly public figures whose tattoos could end up on display and recreated across many different platforms. Continue reading for a discussion of some of the options available to those individuals who are concerned about the consequences of not owning their own tattooed image.
What is the solution to avoiding infringing copyright in tattoos?
The primary solution to avoiding any sort of legal trouble relating to tattoos is for public figures to acquire, by either assignment or licence, the right to include the tattoos when their image is recreated digitally or to reproduce and display their tattoo in any other form.
A copyright assignment transfers the ownership and the rights associated with ownership to the assignee. A licence grants the licensee the right to use the work for a specified purpose during the term of the licence. Typically, a licence is less expensive and less difficult to obtain because it allows the original creator to retain ownership. Pursuing a non-exclusive licence to reproduce and display the tattoo in any medium and in any manner would be a good option for high-profile individuals such as athletes and actors to consider before committing to a tattoo.
If a company or individual wishes to recreate a tattoo, or the image of a person with tattoos, and the person who possesses the tattoo has not yet negotiated an agreement with their tattooist, the company should consider negotiating their own licensing agreement with the tattooist before recreating the work and potentially incurring a lawsuit.
Additional Considerations
It should be noted that in Canada, moral rights cannot be assigned, they can only be explicitly waived. Whether the agreement is for an assignment of copyright or a licensing arrangement, the tattooed individual or company seeking to use the individual's tattoo should ensure that the tattooist has waived their moral rights as part of any agreement they negotiate. Otherwise, the tattoo artist might claim infringement if a public figure associates the tattoo with any venture that the tattooist deems to be offensive.
It is also worth noting that even if someone collaborates with their tattooist in designing their tattoo, they will still run into issues if someone else seeks to recreate the tattoo to which the tattooed individual and tattooist are co-owners. Co-owners of copyright are able to assign their interest or ownership in their jointly owned work without the consent of the other co-owner. However, co-owners are unable to license their jointly owned work without the consent of the other co-owner. Seeing as most people would probably prefer not to assign their interest in their own tattoos to a company who would then permanently own the rights to part of their image, public figures will still have to negotiate assignment or licensing agreements with their tattooists in order to allow unaffiliated parties to commercialize their image even if they are co-owners of their tattoo.
Takeaways
The fact that tattoos are most likely copyrightable works raises many potential legal issues that have not yet been decided by the courts. While it seems unlikely that a tattoo artist would win if they were to claim infringement due to a photograph or video being taken of the individual openly sporting their original tattoo unless it were for a commercial venture, it seems a lot less likely that legal claims could be entirely avoided if an individual or company were to recreate the tattoo in either a photograph, video, or digital format.
The solution to avoiding any potential copyright infringement in relation to tattoos is for tattooed public figures and individuals or companies seeking to recreate original tattoos to look into negotiating an assignment or a licence from the tattoo artists.
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.
