- Copyright is a property right in an original work of authorship fixed in any tangible medium of expression. It gives the holder the exclusive right to reproduce, adapt, distribute, perform, and display the work.
- In other words, copyright is “a monopoly of limited duration, created and wholly regulated by the legislature; and an author has, therefore, no other title to his published works than that given by statute.” (Ethan S. Drone, A Treatise on the Law of Property in Intellectual Productions).
- Copyright accrues to the author automatically when the work is put in material form and the non-registration of such work does not bar one from asserting such rights.
- In Kenya, there is no explicit legal definition of a tattoo but it would qualify as an artistic expression under the Copyright Act because it defines artistic expressions as drawings or any other similar works. Under Section 22 (3) of the Act, to be eligible for copyright, the work must be original and reduced into material form. A tattoo must be original and reduced into material form to become protected as intellectual property.
- Having a tattoo on your body does not mean you own it. Being an artistic expression, the tattoo artist owns it because most of them create the designs and clients merely choose the ones that impress them.
- However, you can enter into an agreement with the tattoo artist so that they can assign the rights of ownership over a tattoo design. If another person creates a similar design it would amount to infringement of copyright. Suing the infringer would entitle you or the tattoo artist to damages. However, most people would not sue if someone created a similar design unless there was substantial commercial value over the tattoo.
- Suits over infringing tattoos are more common in the United States. Under the Alabama code Section 22-1-17A, tattoos are defined as an indelible design upon the body of another individual by production of scars other than by branding. In Victor Whitmill vs. Warner Bros. Entertainment Inc., Whitmill, a tattoo artist based in the US sought relief against the defendant before the release of Hangover II citing copyright infringement for the reproduction and broadcasting of a tattoo similar to the one on Mike Tyson’s face.
- In the case, the Plaintiff being the creator of the tattoo was in agreement with Mike Tyson that he would own the artwork. The parties however entered into an out-of-Court settlement.
- Tattoos are eligible for copyright but since you must present a copy of the work in material form for registration, you must reduce your body art onto paper. Once registered, you would enjoy exclusive ownership over the design. However, as stated earlier, the non-registration of such work does not bar one from asserting copyright.
- When awarding damages for infringement, the court will consider the commercial value of the tattoo design as shown in Victor Whitmill v Warner Bros. Entertainment Inc.
If you have any query regarding the same, please do not hesitate to contact Caxstone Kigata or Wamuyu Mathenge at caxstone@wamaeallen.com or wamuyu@wamaeallen.com. Note that this alert is meant for general information only and should not be relied upon without seeking specific subject matter legal advice.
About the author
Caxstone specializes in civil, employment and labour disputes, constitutional law, family law and succession, and environment and land matters. He has amassed a wealth of knowledge and experience in litigation which is evident in the successes obtained for clients. He is an active member of the Employment and Labour Relations Court Bar-Bench committee.
