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Intellectual Property

Celebrity body art comes with copyright considerations

Professional athletes and other celebrities might want to take a lawyer along the next time they get tattooed, Toronto intellectual property lawyer Taras Kulish tells AdvocateDaily.com.

Kulish, a senior associate with Steinberg Title Hope & Israel LLP, says even budding superstars should consider the legal ramifications of their ink as more tattoo artists assert their copyright claims.

He points to a recent lawsuit where a handful of professional basketball players, including Lebron James and Kobe Bryant, are the central figures in a dispute between a video game maker and a tattoo studio.

According to the Hollywood Reporter, a collective of artists claims to own copyright to several tattoo designs featured on the bodies of NBA stars who appear in a video game.

“While the person with the tattoos owns the skin, obviously, the artwork is something different," Kulish says. "Once you create an avatar, as the makers of the video game did, then the artwork appearing on the avatar is a piece of copyrighted property.”

But, he says, James filed a declaration of support testifying that the avatar without his tattoos isn’t really a depiction of him since they are a part of his identity.

The case — and others like it — have raised some interesting questions about the nature of tattoos and their legal standing, Kulish says.

The creator of the facial tattoo of professional boxer Mike Tyson sued the makers of a movie because a scene showed one of the characters with the same iconic ink on his face. That case was settled out of court.

Similarly, a professional wrestler is also at the centre of a lawsuit between his tattoo artist and a video game maker.

Professional U.S. football players have been advised by their players' association to get a release for the design when they get inked, a Forbes article reports.

Kulish says this approach seems most advisable. Getting a release at the outset should clear up potential legal problems down the road, he says. Likewise, artists should consider having each person they tattoo sign an agreement with them agreeing to a reasonable royalty for future reproductions of their original creations.

“When the video game makers create a game they have to license the logos and the team jerseys from the professional leagues,” he says. “This is no different really.”

He says Title 17 of the United States Code, which deals with copyright, states that: “protection subsists … in original works of authorship fixed in any tangible medium of expression … from which they can be perceived, reproduced, or otherwise communicated" including “pictorial and graphic works.” 

Kulish says tattoos are fixed on skin — a tangible medium — and are reproduced on film, video and photographs and on digital avatars in video games. 

"The question whether a tattoo is an original work of authorship would be determined on a case-by-case basis," he says.

In Canada, s. 3(1) of the Copyright Act provides that “copyright, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever.”

"It would seem that in Canada, the copyright ownership of an original tattoo design or work, is likewise covered by the law," Kulish says. 

While the issue of the copyright ownership of a tattoo has reared its head on several occasions in the U.S., Kulish says the issue is similarly important in Canada.

“We are witnessing a whole generation of young Canadians — such as R.J. BarrettDenis Shapovalov, and Penny Oleksiak — who have achieved or are on the cusp of international fame in the sports and entertainment fields who ought to consider the legal implications of their celebrity status and the use of their image," he says.

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