Will your tattoo infringe copyright work?
Introduction
When people tattoo, they often make reference to another piece of
artwork. If the referenced work is copyright protected, will the tattooist be
liable to copyright infringement? In Sedlik
v Von Drachenberg et al, 2:21-cv-01102-DSF-MRW (C.D. Cal. May 31, 2022),
a famous tattooist, Kat Von D, is sued by a reputable photographer for tattooing
his photograph on her acquaintance and publishing it on social media. If the
same happens in Hong Kong, will the legal position be any different?
Sedlik v Von Drachenberg et al
Facts
Jeff Sedlik is a renowned professional
photographer. He created an iconic photographic portrait in 1989 depicting Miles
Davis, a famous jazz musician, and registered his copyright with the United
States Copyright Office (“Copyrighted
Photograph”).
In 2017, Kat Von D inked a tattoo (“Tattoo”) of Miles Davis on Blake Farmer,
a lighting technician with whom she worked on a film project. Farmer admires
Miles Davis. He did a Google search and found a photograph of Miles Davis
without a copyright symbol and sent it to Kat Von D’s assistance. It turns out
that the photograph was the Copyrighted Photograph. Sedlik’s permission had not
been obtained prior to inking the Tattoo.
Kat Von D has been inking tattoos for
customers pro bono since 2012 and did not receive any payment from Farmer for
inking the Tattoo. On 18 March 2017, Kat Von D and her company posted photos
showing Kat Von D creating the Tattoo with a printout of the Copyrighted
Photograph in the background as a reference to their social media account. They
further uploaded another photo of the completed Tattoo on 26 April 2018.
Sedlik commenced legal proceedings against
Kat Von D and her companies for copyright infringement of the Copyrighted
Photograph.
Decision
The US Court rejected parties’ cross
motions for summary judgment and left the matters to the jury.
On the issue of whether there had been
copyright infringement, the US Court considered that whilst Miles Davis’s pose
itself is not separately protectable, the selection and arrangement of the
elements of the Copyrighted Photograph, including the lighting and camera
angle, are protectable. The US Court further found that the Copyrighted
Photograph should be entitled to broad protection because there were a great
number of choices involved in creating the Copyrighted Photograph, such as Miles
Davis’s specific pose, facial expression and lighting and shadows, camera angle
and background for the image.
In respect of the defence of fair use, the
US Court rejected the argument that tattoos inherently create a new expression,
meaning or message as a result of being permanently imprinted on a human body
with personal meaning. The US Court however accepted the argument that by
inking the Tattoo in the freehand method and adding her own interpretation to
the Tattoo, Kat Von D and her co-defendants have met their burden of showing
that the Tattoo has a purpose or meaning distinct from that of the Copyrighted
Photograph by changing its appearance to create movement and a more melancholy
aesthetic.
Comparison
with copyright laws in Hong Kong
Registration not required
Unlike the United States, there is no
registration system for copyright in Hong Kong. Copyright subsistence is
automatic upon the creation of the work. It is not necessary to register
copyright in order to enjoy protection under Hong Kong laws.
Protected works
Section 2(1) of the Copyright Ordinance (Cap.
528) provides that copyright subsists in original literary, dramatic, musical
or artistic works. Under section 5 of the Copyright Ordinance, artistic work
include a photograph, defined as a recording of light or other radiation on any
medium on which an image is produced or from which an image may by any means be
produced, and which is not part of a film. As such, copyright can subsist in an
original photograph.
Copyright
Infringement
Under section 22(1) of the Copyright
Ordinance, the owner of the copyright in a work has the exclusive right to copy
the work. Copying of a work means reproducing the work in any material form. If
a copyrighted work is tattooed on a customer’s body, it is reproduced on the
body and constitutes copying of a work. Therefore, tattooing a copyrighted work
without obtaining the licence or authorization of the copyright owner may
constitute copyright infringement.
To establish primary copyright
infringement, it must be shown the defendant’s work is copied from the
copyright work. A defence can be raised if the defendant had independently come
up with the work, or unconsciously or sub-consciously copied the copyrighted
work.
Exceptions to
Infringement
Unlike the United States, the Copyright
Ordinance in Hong Kong provides for “fair dealing” defence instead of an open
ended “fair use” defence. To qualify for the fair dealing exception, the
copying cannot conflict with a normal exploitation of the work by the copyright
owner or cause unreasonable prejudice to the legitimate interests of the
copyright owner.
There are five forms of fair dealing
exceptions, being fair dealing for purposes of (1) research or private study,
(2) criticism and review, (3) reporting of news and current events, (4) giving
or receiving instructions and (5) public administration. It is unlikely for
tattooing to fall within the scope of these five categories of exception.
Takeaway
Oftentimes a tattooist is provided with reference photos from customers.
He may not be aware of the origin of the photo or whether it is a copyrighted
work. Whilst there has not been any decided case on this issue in Hong Kong, it
is clear that copyright can subsist in photographs without any registration. There
is a risk for tattooists to be liable for copyright infringement in view of the
limited scope of the fair dealing exception. It will be prudent for tattooists
to verify the origin of the reference works given by customers before
imprinting the same on the customer’s body.
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Important: The law and procedure on
this subject are very specialised and
complicated. This article is just a very general outline for reference and
cannot be relied upon as legal advice in any individual case. If any advice
or assistance is needed, please contact our solicitors. |
Published by ONC Lawyers © 2022 |