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Monday, 19 August 2013

More on copyright in tattoos: a Belgian precedent


Prof Marie-Christine Janssens
A few days ago the IPKat published a post that discussed some of the various copyright and cultural issues that surround tattoos. 

Among other things, this Kat wondered whether there have been any decisions that addressed whether a tattoo may be protected by copyright.

Katfriend and IP academic Prof Marie-Christine Janssens (KU Leuven) responded to this plea for help with information about a very interesting 2009 Belgian case which tackled issues of tattoos, copyright, privacy and personality rights.

Here's what Marie-Christine writes:

In 2009 the Court of Appeal of Ghent (Belgium) rendered a decision which addressed the relationship between copyright (including moral rights) and the right to privacy. This was a dispute between a tattoo artist who had used a photo of a tattoo he had realised in an advertisement to promote his commercial activity, and the person bearing that very tattoo.
Should you ever regret
choosing this tattoo,
you can have it removed 
without infringing
the moral rights
of your tattoo artist

According to the court, a distinction must be made between the copyright in the design of the tattoo (the actual design), and the copyright in the tattoo as is reproduced on the body of a person.

The court held that copyright may subsist in a tattoo and that the person who realises it may be recognised as the author. 

However, the reproduction right of the tattoo artist is limited to the actual design. This means that, while he/she may execute the same design on another person’s body, the tattoo artist may not interfere with the activities of the person bearing his/her tattoo. So, for instance, the tattoo artist may not prevent the person bearing the tattoo from allowing third parties to take photographs of his/her tattoo. According to the court, this limitation in the copyright of a tattoo artist is justified by the fact that the tattoo is performed on a human being. As a result, the reproduction right has to yield to both the image rights every person owns with respect to his/her own body, and one’s freedom of movement. Hence, the tattoo artist may not prevent that the person bearing the tattoo agrees to have photos of his/her body taken and disseminated.

The Court applied a similar reasoning with respect to the moral rights of the tattoo artist. It held that these are subordinated to the personality rights of the tattooed person. Because the tattoo is performed on a human being, as soon as the design is reproduced on one’s body, the author of the tattoo loses his/her right of disclosure and right of attribution to the tattoo, as well as his/her right of integrity. This means that, if the tattooed person wished to remove or alter the tattoo, he/she would free to do so.

5 comments:

Thomas Cotter said...

This is really interesting. A coauthor and I anticipated that, given the growing popularity of tattoos, issues of this nature would start to pop up someday, in a paper we published a decade ago, available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1865871.

Roufousse T. Fairfly said...

SSRN returns empty results for the link you supplied, or for Abstract_ID = 186587 .

Is this a stealth publication? (A nice oxymoron, when I think about it).

Roufousse T. Fairfly said...

OK, I think I found it:

Written on the Body: Intellectual Property Rights in Tattoos, Makeup, and Other Body Art.

Thomas F. Cotter, Angela M. Mirabole;
UCLA Entertainment Law Review, Vol. 10, 2003, Minnesota Legal Studies Research Paper No. 11-25 SSRN: June 16, 2011

Mark Nowotarski said...

Which raises the interesting question of design patents. People aren't articles of manufacture, so you can't patent a tatoo displayed on a person, but computer screens are manufactures, so you can patent the display of the image of a tattoo on a computer screen.

enric enrich said...

In my opinion, the decision confuses two separate rights, the person in which the tatoo is incorporated does not acequire the copyright on the tatoo. And if there is no specific exception in Belgium copyright law, I don't understand how the court applies it. Is there a general "fair use" in Belgium system?

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