Tattoos and copyright infringement | Atty. Dennis Gorecho (2024)

“To ink or not to ink, that is the question!”

Tattoos as protected copyright was the issuein the Emerging IP Rights Committeeofthe 76thCouncil Meetingof the Asian Patent Attorneys Association (APAA)at the SMX Convention Center and Conrad Hotel in Pasay City, Metro Manila fromNovember 18 to 21, 2024.

A tattoo is “an indelible mark or figure fixed upon the body by insertion of pigment under the skin or by the production of scars.”

Tattoos are emerging into greater significance and presence due to shifting societal attitudes toward tattoos as a form of self-expression and art, which has fueled acceptance and the demand for diverse tattoo styles and designs.

Copyright protection applies to “original works of authorship,” both published and unpublished; this includes writing, art, music, dramatic works and other intellectual property.

Copyright arises automatically when a “work” that qualifies for protection is created and “fixed”— that is, taken out of the mind of the creator and turned into a tangible, material form.

The work must be tangible: Ideas, speeches, or other works that have not been written down or recorded are not subject to copyright protection.

The work must be original, meaning it needs to be a product of an author’s judgement and skill, and must not be copied—it is the author’s own “intellectual creation.”

The discussion revolved around issues of possible statutory or common law defenses or exemptions, application of tests of substantial similarity in various jurisdictions, and proper assessment of damages.

Many noted the lack of legal precedents specifically addressing tattoos within copyright laws.

Most countries adopt the principle of fair use, which allows the exploitation of a copyrighted work depending on its intended use. The application of the fair use concept, in order to avoid liability for copyright infringement, depends on varying circumstances that are subjectively determined based on the reproduction of the copyrighted work on a person’s body as a tattoo.

Some participants argued that a person’s body is a form of inviolable self-expression and art, which should exempt it from copyright infringement.

The absence of a protection mechanism to enjoin copyright-infringing artwork in the form of tattoos presents a challenge, largely due to the lack of legislation specifically addressing tattoos as copyrighted works.

The consensus among participants is that tattoos should not be exempt from copyright laws.

Unless a tattoo is considered an original expression or independent creation of the tattoo artist, or if the tattoo qualifies under the circumstances covered by the doctrine of fair use, it is no different from other forms of intellectual creation, which may warrant different treatment.

Established in December 1969, membership of APAA is open to individuals practicing the profession of patent attorney in the Asian region as well as organizations that comprise such individuals and are constituted in the Asian region.

With over 1,200 participants, some of APAA’s activities include exchanging information and views concerning Intellectual Property (IP) protection on issues involving anti-counterfeiting, copyright, patents, designs, trademarks, and emerging IP rights, and their enforcementin different jurisdictions.

Senate President Francis “Chiz” Escudero, asthe keynote speaker during the opening ceremony, urged major reforms that must be made to national innovation system, which encompasses the academe, the government, and the business sector.

“We must do more to boost and support the local production of knowledge by our home-grown scientists and researchers. We play an important and integral role in developing not only the countries where we live but in developing the world in which we live in.”

Escudero added: “In the hope, in the dream that we can make this a better place than our world when we were born in it, than our children when they were born in it. Hopefully, our grandchildren and our children’s grandchildren will live in a far better place than where we are living today.”

The Organizing Committee of the 76th APAA Council Meeting in Manila is led by Chairman Atty. Lorna Kapunan and Co-Chairman Atty. Pablo Gancayco. Intellectual Property Association of the Philippines (IPAP) is led by Atty. Rico Domingo, IPAP President, and Atty. Ferdinand Fider, IPAP Chairman.

“This is a great opportunity for Asia to connect. This APAA conference is a learning curve for many. This is a seminar we hold for furthering IP practice and to share what we have, to meet other people, to network and impart knowledge,” Atty. Gancayco said.

Atty. Kapunan explained that the purpose of the conference is to enlighten and inspire attendees in the various aspects of IP.

The Philippines hosted the APAA council meeting four times: 1990 (Manila Hotel), 2000 (Cebu),2011 (Makati) and2024 (Pasay).

Atty. Dennis R. Gorecho is the Junior Partnerofthe Sapalo Velez Bundang Bulilan Law Offices and a member of the IPAP Board of Trustees. For comments, e-mail info@sapalovelez.com, or call 09088665786.