Tattoos have existed for over 5,000 years and are becoming more popular than ever.
Few people may realize though, that they do not own the copyright to the beautiful artwork inked forever into their skin.
The video game case
Last year, Solid Oaks Sketches, LLC, the licensee of several famous tattoo designs commenced a copyright infringement proceeding in New York against three video game creators (Visual Concepts, Inc., 2K Games, Inc. and Take-Two Interactive Software, Inc.) who depict the likeness of various NBA players (such as LeBron James, Kobe Bryant, Eric Bledsoe, DeAndre Jordan and Kenyon Martin), as well as their very distinctive and famous tattoos.
The tattoos are original designs owned by independent tattoo creators who licensed their copyright exclusively to Solid Oaks. The video game’s promotion, advertising, and packaging prominently featured copies of the tattoos in question as a selling feature.
The defendants have recently filed a motion to have the plaintiff’s case dismissed and a decision is expected to be released soon by the US District Judge.
Under principles of copyright law, whether in the US or in Canada, it would be generally accepted that tattoos meet the minimal requirements of originality and fixation required to gain the protection of artistic work under copyright laws. Unfortunately, no US or Canadian court has yet to make such a finding as such cases are usually settled out of court.
The question, in this case, is whether the video game makers have a valid defence or lawful justification for their infringing activities.
The defendant video game creators argue that their reproductions are (a) trivial and only minimally infringing and (b) allowed under the US copyright doctrine of “fair use”. It is noteworthy that they do not argue that there is no copyright protection in tattoos.
If the case was made in Canadian courts, the Canadian doctrine of “fair dealing” would also be invoked as a defence. Under both fair use and fair dealing doctrines, a judge examines various circumstantial factors to decide whether the reproduction of copyrightable subject matter is fair and therefore non-infringing. For example, one factor in the infringers’ favour is that the tattoos are not a key feature in the playing of the video game. On the other hand, a factor in Solid Oaks’ favour is that the tattoos were used for commercial purposes in promoting the realistic nature of the game. Ultimately, the court will consider each of the relevant factors and decide whether the infringement is permissible under the circumstances.
Who owns the tattoo?
As a practical day-to-day matter, the initial legal issue for consumers is "who owns the copyright in your tattoo?" Is it (a) the tattoo artist; (b) the tattoo shop owner (as the employer of the artist); (c) you (the client) who pays for it; or (d) a third-party tattoo image designer?
You will want to determine that question up front and obtain express permission for any future uses or reproductions, particularly if you are a public personality (e.g. an actor, athlete, model) who will use your tattoos as part of a commercial venture.
On the other hand, if you are the tattoo artist, you may want to make sure your clients clearly know that they do not own the copyright to the tattoo and that all they receive is an implied license to display it on their skin. If your client wants an assignment of the copyright to become the full owner, the transaction will have to be signed and in writing (and may cost more).
Get it in writing
The license or assignment agreement might also stipulate that you, the artist, are not waiving your moral rights in the artwork, such that future uses by the client that harm your honour or reputation are not permitted. If the image requested for the tattoo is owned by a third party (e.g. a famous trade-mark) and used without permission, the document should include a disclaimer of liability and indemnification in favour of the artist.
Such copyright wording can be easily added to the standard “waiver and release” document that tattoo clients must usually sign (relating to parental consent, possible allergic reactions, scarring, ink colour variations, word misspellings and so on) to absolve the tattoo artist.
Where do we go from here?
Each case will depend on its facts. For example, if you design your own original tattoo and the artist merely copies it on your body without any creative input whatsoever, then there is no originality on the part of the tattoo artist and you would solely own your tattoo’s design copyright.
In contrast, if you have input on the selection of images, colours, sizes, placement on your body and similar creative aspects of the tattoo, the copyright in the finished artwork may be jointly owned with the tattoo artist.
Given the lack of helpful jurisprudence and the relative uncertainty about copyright in tattoos, the best way to clarify each party’s rights is by putting as much as you can in a contract. This will not prevent disputes, but it will guide the artist and customer on how to resolve them.
For more information about intellectual property matters, please contact Marc Belliveau.