While preparing a lecture on fashion law, trademarks and intellectual property, a strange thought occurred to me: “Is my skin an illegal artwork?” Don’t get me wrong, I’m no masterpiece. I do, however, have tattoos. One illustration by Audrey Kawasaki, one of my favourite Japanese-American artists, is sizeable and took nine hours to complete.

The tattoo was completed long before I turned my mind to the intricacies of intellectual property law, which is developing at rapid speed around the world. We’re talking attempts made by companies to trademark colours, shapes of lego and chocolate, hashtags and cheerleading costumes. Elsewhere, famous individuals have sought to protect personal branding and potential financial loss by really stretching the definition of what is trademarkable (think Taylor Swift trademarking the phrase “this sick beat” and Gene Simmons seeking to trademark the infamous ‘devil horns’ hand gesture). There has also been widespread and expensive litigation surrounding copyright infringement of popular songs and photographs.

What is, and importantly, what is not capable of being protected by intellectual property law has significant flow on implications for individual creative rights and, increasingly, for big business.

Personally, I have occasionally regretted my failure to contact Kawasaki and request permission to use her design for my tattoo, although at the time my mind was more preoccupied with “arghhhh needles!”

So the question remains: could I be breaching Australian copyright law? Could my tattoo artist? The answer is a resounding … probably.

While there is little law in this rather niche area, especially in Australia, it has been judicially considered in the United States.

Are tattoos subject to copyright protection?

Short answer – yes.

Long answer – it may depend on where you live.

The UK, for example, has been reticent to explore litigation in this area, citing irreconcilable tensions between human rights law, including the right to privacy and freedom of expression, and copyright protection.

In the United States, like Australia, it is not necessary to register copyright for the protection to exist. However, to sue for copyright infringement of a creative work in the US, it is necessary to have registered the design. Copyright infringement of tattoos is a developing area in the US and one that has seen a number of high profile cases in recent years.

In Australia, copyright law automatically protects original ‘artistic works’ such as paintings, drawings, cartoons, sculptures, craft work, architectural plans, buildings, photographs, maps and plans. However, there is still some uncertainty around whether a tattoo would qualify as an artistic work in Australia and there has been no litigation in this area to clarify the issue.

Some commentators have suggested that to put the matter beyond doubt tattoo artists could sketch or draw original designs on a sheet of paper prior to beginning a tattoo on skin.

Do celebrities and sports stars own their tattoos? 

Sometimes it’s a movie

For anyone who has endured the 2011 film The Hangover: Part II, you may have observed a copyright violation. In the film, ‘Stu the dentist’ ends up with boxer Mike Tyson’s signature tattoo inked on his face.

As it turns out, Tyson’s distinctive tattoo was designed by the award-winning tattoo artist, Victor Witmill, who has described Tyson’s design as “one of the most distinctive tattoos in the nation.” At the time the tattoo was completed, Witmill had the foresight to have Tyson sign a document confirming that ownership rights to the original design vested in him as the artist.

Fast forward to Warner Bros. anticipated release of The Hangover: Part II and – bang – Witmill sought an injunction to prevent the studio from releasing the film on the basis of copyright infringement given that he was not contacted by either the studio or Tyson to seek his permission to use the image in the film or to credit his creation.

The Honorable Catherine D. Perry referred to the contract/release between Tyson and Witnill as:

totally consistent and appropriate under copyright law.”

and was also satisfied that Warner Bros. use of the design was unauthorised. It was noted that on the balance of equities (given the “very large” harm to the studio and loss of millions of dollars) as well as public interest considerations (given that the public wanted to see the movie and theatre owners stood to lose a lot of money) that Witmill’s injunction should be denied and the film allowed to open.

However, despite the ruling, Judge Perry said that Whitmill would “probably win” his case if he sued Warner Bros. Witmill went ahead and sued the studio for copyright infringement and the case was settled out of court for an undisclosed sum.

Playing video games

As we have seen with The Hangover: Part II, any replication of a tattoo design without permission from the creator can constitute a breach of copyright.

When it comes to video games, to enhance the user experience and simulate reality, sports stars are created as realistically as possible even down to replicating tattoos.

In recent years, several lawsuits have been filed over the use of copyrighted tattoos on players without permission from the artist.

EA Sports has come under scrutiny several times. The company was sued over a 2004 game, NFL Street, which prominently depicted footballer Ricky Williams’ tattoo created by artist, Stephen Allen, on the cover of the video game. Allen sued both Williams and the publisher for replicating the tattoo without seeking his permission.

In 2012, UFC fighter Carlos Condit’s tattoo artist filed a lawsuit against video game developer THQ for featuring his artwork in a new UFC game without permission. The tattoo artist sought $US 4 million and was awarded $US 22,500 but later challenged this sum as inadequate. The case settled for an undisclosed figure.

It should come as no surprise, then, that for the 2014 game release, EA Sports, who now owns the UFC licence, removed or altered tattoo artwork on its digital fighters, including Carlos Condit’s famous ink, to avoid any risk of litigation from owners of the original designs.

One savvy game developer who has taken note of the growing litigation trend surrounding the replication of original tattoos in video game development is Madden. Its NFL game depicts all players, apart from Colin Kaepernick, as cleanskins.

The NFL players association has raised similar concerns with its members and advised players to obtain a written release from tattoo artists even before the needles are unpacked. For existing tattoos, players are advised to contact the creator of the original tattoo and obtain a release. Managers for Colin Kaepernick of the San Francisco 49ers even wisely asked tattoo artist Nes Andrion of Endless Ink to sign a waiver ensuring Kaepernick’s tattoos were his and his alone.

As we have seen, not seeking permission from a tattoo artist or failing to obtain a written release, particularly in the case of sporting stars, can result in dire and very expensive consequences.

A 2016 copyright infringement case, for example, saw the NBA 2K16 game company, Take Two, sued by Solid Oak Sketches for over $US 1.1 million for the license to use their designs in video game representations of some of the biggest stars of the NBA including Kenyon Martin, LeBron James and Kobe Bryant.

The skin you’re in 

In an age where social media influencers have millions of followers viewing personal images daily, it doesn’t seem like such a reach to consider the possibility that our bodies are becoming billboards that advertise our commercial interests, sponsors, passions, personality and perhaps our identity to the world. But how absolute is our ownership of the skin we live in?

Depending on how the law develops in this area, we may not own the artwork on it.

It’s easy to accept that making a copy of an artwork to hang in our home is a breach of the original artist’s copyright. But how is replicating another artist’s original work in the form of a tattoo on our skin any different? Will the courts accept such similarities or will tattoos be considered too impermanent to be copyright protected in Australia? It bears mention that a tattoo design walks around all day with you and is much more visible to the public than it would be hanging in your home.

While the answer to how far Australian copyright protection of tattoo art extends does remain somewhat unclear, it’s safe to move forward using a few key principles:

1. before being inked, wherever possible, consider a copyright agreement that clearly stipulates who owns the tattoo
2. seek permission in writing in situations where, like my Kawasaki tattoo, your prospective ink replicates the original work of another artist
3. as professional athletes and other public figures are most at risk of coming under scrutiny for tattoo copyright violations, try to avoid becoming a celebrity (insta-famous or otherwise) and, if you do, cover up your body art.

Do you have any tattoos that could be violating copyright law? Let us know in the comments! 

What didn’t cross my mind, until recently, is how performing a cover of another musician’s song may actually be against the law.

Copyright Protection Of Songs

Copyright law exists to protect every song by virtue of its creation.

There is no need to register a composition to protect your creative genius – when you write a score or record a home demo, copyright automatically steps in and gives you exclusive rights and protections. It does not matter if your song is the next number one hit or if you struggle to get your mum to listen to it:

If you created the music, Australian copyright law protects it. 

This protection comes in many different forms, giving copyright owners a number of exclusive rights to use and perform creative works, including the right to perform your music in public. Copyright law protects both the score and lyrics of a song meaning that Justin Vernon the writer and composer of ‘Skinny Love’, for example, has the exclusive right to perform his song in public.

Notwithstanding that this is unambiguously the state of the law in Australia, I found myself listening to this song being performed live by another artist. How is this possible? Do you need permission to cover a song live?

What Musicians Need To Know

For all musicians, copyright law is something that you need to be aware of and to understand.

Being aware of your personal rights as a musician is not only important to defend against unauthorised use of your own songs, but also to make sure that you do not unwittingly infringe the creative rights of another artist.

To perform a song in public, you must be granted a licence. Performing a cover without a music licence is a breach of Australian copyright law. 

The same principle applies to businesses who wish to play background music within a restaurant or shop. Without a licence, playing a song to the public is an infringement of the rights of the musician and copyright owner.

Obtaining A Music Licence

In Australia, a number of copyright collecting societies provide music licences and distribute royalties to the copyright owners.

For musicians looking to play gigs, the Australasian Performing Right Association (APRA) is the best place to start. Even if you are performing a free show or participating in a charity event hosting free live concerts you must still obtain a licence.

For businesses who wish to play background music, the Phonographic Performance Company of Australia (PPCA) provides a blanket licence that ensures your business complies with the law, however, it is also necessary to obtain a licence from APRA. Alternatively, you can seek permission from individual artists and copyright owners but this method can be onerous.

When Your Song Is Performed By Another Artist 

What happens when someone performs your song, or a substantial part of it, without your permission?

1. Seek advice on whether you have a solid claim for copyright infringement. The Australian Copyright Council has a free online legal advice service which can help you work this out.
2. If your work is being administered by a collecting society, such as APRA, notify your relevant body as soon as possible after you become aware of the possible infringement.
3. Contact the infringer. Let them know that you are the owner of the music and that they infringing your copyright by using your music without your permission and without paying for a licence.

You can do this with an informal email or an initial letter of demand that asks the performer to stop infringing your copyright without a relevant licence.

Before sending a letter of demand, or making any claims that someone has infringed your copyright, however, it is critical that you seek legal advice. If you send a threatening letter and the other musician has not actually infringed your copyright, this can be considered a groundless threat, meaning that the person you have accused of infringing your copyright can sue you for making an unsubstantiated threat of legal action.

4. If the above avenues are not successful, as a last resort, you may decide to take the matter to court. If you are successful, the court may order an injunction to stop the infringement of your copyright or make an order that a sum of money (damages) be paid to you.

At The End Of The Day

Copyright is a form of intellectual property.

The musicians behind the songs we know and love – the songs that move us, that make us feel and make our lives infinitely better – need to be protected, supported and credited by other artists, individuals and businesses. The only way artists can continue to enrich our lives is through greater respect, awareness and compliance with the moral and economic rights to their music.

How often do you perform covers as part of your set list? Have you considered the copyright implications? Let us know in the comments!

Further Information

Arts Law Centre – for more information on your rights as a musician and access to legal professionals specialising in copyright law.

To learn more about your rights as a musician visit:

• Music Rights Australia

To find safe and licenced content online visit:

• Digital Content Guide

For a list of legal digital music content providers in Australia and internationally visit:

• Pro Music

To get in touch with a legal professional specialising in entertainment law visit:

• Marque Lawyers (NSW)
• Creative Legal (WA and Vic)
• Studio Legal (Vic)
• Media Arts Lawyers (NSW and Vic)
• Shaun Miller Lawyers (Vic)
• Simpsons Lawyers (NSW)
• Sanicki Lawyers (Vic and Qld)
• McCormicks (Qld)

News of the release of the Copyright Amendment (Disability Access and Other Measures) Bill 2016 exposure draft was probably drowned out by the tiresome election coverage and any hope of immediate action in the first few months of the new government is pipe-dreaming. This is indeed a bothersome state of affairs for copyright reform advocates.

Copyright law is the misunderstood angsty teenager of the legislative family, one that is very often overlooked despite being of increasing importance in an ever digitised world. While the proposed bill does not go all the way to making the changes that the Australian Law Reform Commission’s (ALRC) Report Copyright and the Digital Economy recommended in 2014, it does make some modest and important improvements to the existing copyright framework.

The main changes proposed in the bill are designed to streamline and simplify the Copyright framework to:

• make it easier and simpler for educational institutions and copyright collecting societies to agree on licensing arrangements for the copying and communication of copyright material
• provide simple, clear guidelines for libraries, archives and key cultural institutions to make preservation copies of copyright material
• align the period of protection for unpublished works with that of published works to provide libraries, archives and other cultural institutions with greater opportunity to use, and provide public access, to unpublished works
• ensure that search engines, universities and libraries have ‘safe harbour’ protection if they comply with conditions aimed at reducing online copyright infringement
• importantly, the bill also seeks to streamline and simplify the existing copyright exceptions and limitations for the use of copyright material by the disability sector.

Protection Of Unpublished Works: Respect For The Creator Or Unnecessary Stymying Of Creativity?

The purpose of copyright law is to protect the expression of the work, rather than the ideas and facts it contains.

However, affording indefinite protection to unpublished works has not only locked up expression, it has also locked up facts. Take, for example, Captain Cook’s recipe for carrot marmalade, undoubtedly a valuable contribution to society, but one that cannot be published because it is contained in a book of Cook’s correspondence.

The National Library holds this among many other letters written and received by notable figures, including Jane Austen and Dame Nellie Melba, all of which cannot presently be digitised or copied.

Advocates of retaining the indefinite protection afforded to unpublished works argue that it is a necessary outgrowth of the need to respect the wishes of the creator, who never wrote or received those letters with the intention of publishing them.

This argument, although initially persuasive, is easily refutable.

Copyright law was established with the intention of encouraging creativity, where the promise of protection and corresponding reward is thought to be necessary in order to incentivise the creation and dissemination of works in the first instance. Unpublished works clearly do not fit within the broader goal of copyright work, since they weren’t created with the rewards of publication in mind.

It is more persuasive to suggest that unpublished works should not be protected by copyright law at all.

How Does The Proposed Bill Change Things?

The bill seeks to make the protection terms for published and unpublished works the same.

Currently, unpublished works have indefinite copyright protection, and published works are copyright protected for the lifetime of the author, plus 70 years.

The proposed bill aims to apply what is known as the “plus 70” law to unpublished works, an unprecedented step in the quest to encourage creativity.

The proposed bill provides libraries, archives and key cultural institutions with ways around their present inability to preserve unpublished works.

While the copyright protection of unpublished works isn’t going anywhere any time soon, the bill seeks to provide an acceptable compromise, one that affords unpublished works the same term of protection as published works, and allows institutions to make ‘preservation copies’ of such works.

If the Bill does not pass, creating such copies will remain illegal, which leaves our existing copyright laws with a serious deficiency.

The Copyright Act 1968 and associated legislation is excessively complex, archaic and restrictive. In the light of this, the Bill also seeks to streamline educational statutory licence provisions, supporting access rather than creating unnecessary red tape and overly bureaucratic processes. This will improve the quality of teaching in schools by providing simpler and more accessible licensing arrangements regarding copyright material.

Submissions to the consultation regarding the exposure draft of the Bill closed on 12 February 2016. Once the new Parliament settles in, hopefully the bill will be re-introduced with amendments that take account submissions received. Maybe then we will finally see action in an area that has been crying out for reform since the internet of things was born.

Conclusion

It’s the first step, albeit small, towards realigning copyright law with public and industry sentiment and need.

The passage of the bill through Parliament will hopefully ignite discussion surrounding more contentious areas of copyright law, namely the introduction of a fair use exemption. There is still much work to be done in establishing how much protection and control creators should be afforded over their work, and how this can be balanced with the need to ensure public access to such works and promote a rich and vibrant public domain.

Have anything to add to this copyright discussion? Let us know in the comments section below!