Tattoos, Copyright, the Prime Minster and Estate Planning
When preparing your will it is important to consider what assets you own and what you can leave to your heirs. Do you think of copyrights when you consider your assets? Probably not, but if you own a copyright over something, these rights can be left to your estate or heirs. A recent article written by Faksen lawyer Demetre Vasilounis discussed the idea of copyright law as it applies to tattoos, estate planning, and how tattoo artists, like other artists, are likely covered by the Copyright Act.
Copyright can exist on any original artistic work that is in a fixed form, this includes the rights over the works reproduction in any medium. As noted by Vasilounis, there is no reason why human skin is not counted as a fixed form. This idea is supported by case law from the United States, where the courts have found tattoos are and can be subject to copyright. Cases dealing with this issue are stem primarily from the United States, centring on high profile athletes and the reproduction of their tattoos in different mediums. One example is a lawsuit stemming from Mike Tyson’s tattoo being reproduced in the Hangover on actor Ed Helms, but there are also a number of cases dealing with professional athletes likeness in video games including depictions their tattoos.
This issue may seem more like a legal problem you’d encounter in the United States based on the stereotype that Americans are focused on celebrity culture and are quick to start law suits, however there are high profile tattooed Canadians whose likeness is often reproduced in a variety of mediums. The most apparent example of this is our Prime Minister, Justin Trudeau who is known for his love of the shirtless selfie. If you have seen these famous selfies, then you have probably caught a glimpse of his shoulder tattoo, which is based on the artwork of Haida artist Robert Davidson. While Davidson is not a tattoo artist, and did not consent to Trudeau using his art as the template for Trudeau’s tattoo, Davidson’s copyright might be engaged in certain reproduction of Trudeau’s likeness should they include the tattoo. This hypothetical isn’t that farfetched, as Trudeau’s likeness is depicted in many mediums; you can buy Trudeau socks, Trudeau calendars, Trudeau shirts, and he is frequently depicted in television shows (i.e. Our Cartoon President). If these products included a depiction of the Prime Ministers tattoo’s, it is possible (assuming Davidson hasn’t assigned his copyrights to Trudeau or anyone else) that Davidson’s copyrights over the design may be infringed. While entirely hypothetical, as copyright issues related to tattoos increase in the United States, it is only a matter of time before Canadian courts begin to grapple with similar issues.
So what does this mean for the average person? Concerns over copyrights attached to a tattoo shouldn’t keep you up at night. While the copyright to your tattoo may belong to the tattoo artist or the artist who created the original design, copyright issues shouldn’t arise unless the tattoo was reproduced in some medium without the artists consent. Canadian courts have yet to deal with this issue, and while unlikely to impact the majority of people, from the positioning of the Copyright Act, Vasilounis notes that tattoo artists would be smart to consider the rights they may have to their intellectual property (i.e. tattoos which they themselves have designed). The rights to this intellectual property can be put in a will, and may be an increasing consideration for tattoo artist, specifically when they may have high profile clients.
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