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Tattoos, Copyrights, The Prime Minister, and Estate Planning

When preparing your will it is important to consider what assets you own and what you have the ability to leave to your heirs. While not the first thing to come to mind when considering your assets, 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 reproduction of the work 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 can subject to copyright. Cases dealing with this issue are mostly 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 of their tattoos. 

This issue might seem more of an American legal problem based on the stereotype that American culture focuses on celebrity, and has a reputation for jumping to lawsuits, and yet there are high profile tattooed Canadians whose likeness is often reproduced in a multitude of mediums. The most apparent example of this is the Prime Minister, known for his love of the shirtless selfie, which more often than not includes 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 is 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). Were these products to include a depiction of the Prime Minister’s tattoos, it possible (assuming Davidson hasn’t assigned his copyrights to Trudeau or anyone else) that Davidson’s copyrights over the design may be infringed by such a depiction. 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, as 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 the tattoo artist, specifically when they may have high profile clients. 

If you would like to discuss Estate planning and/or make updates to your existing testamentary documents contact our office directly at 705-526-1471 to book a phone consultation or speak to directly to one of our lawyers.

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