Event Highlights

“Tattoos as protected copyright” was the discussion highlight of the Emerging IP Rights Committee on the second day of APAA 2024: “To ink or not to ink, that is the question!”

Participants from various countries discussed the differing statutory concepts and treatments of tattoos in relation to copyright protection across different jurisdictions. The majority of participants noted the lack of legal precedents specifically addressing tattoos within copyright laws. Most countries adopt the principle of fair use, which allows the exploitation of a copyrighted work depending on its intended use. The application of the fair use concept, in order to avoid liability for copyright infringement, depends on varying circumstances which are subjectively determined based on the reproduction of the copyrighted work on a person’s body as a tattoo. Some participants argued that a person’s body is a form of inviolable self-expression and art, which should exempt it from copyright infringement.

Among the questions raised during the session were the statutory or common law defenses available to tattoo artists to avoid liability. This question, however, is contingent upon the existence of legislation enforcing copyright protection for intellectual works. The absence of a protection mechanism to enjoin copyright-infringing artwork in the form of tattoos presents a challenge, largely due to the lack of legislation specifically addressing tattoos as copyrighted works.

The consensus among participants is that tattoos should not be exempt from copyright laws. Unless a tattoo is considered an original expression or independent creation of the tattoo artist, or if the tattoo qualifies under the circumstances covered by the doctrine of fair use, it is no different from other forms of intellectual creation, which may warrant different treatment.