The federal Copyright Act establishes the legal framework for use of copyright-protected works in Canada. Under the Act, rights-holders have the exclusive right to reproduce and re-use substantial amounts of a work unless such uses fall under one of the statutory exceptions to copyright infringement. This framework attempts to provide a balance between the needs of rights-holders and users. This balance is supposed to serve the public interest.

Legislators have been aware of the need to fix Canada’s Crown copyright regime for at least 30 years.It’s easy to understand how this legal protection incentivizes the creation of new content for those with a commercial interest. However, it is unclear why economic controls are needed for government works: government information is produced using tax dollars and its creation furthers the aims of democratic governance, which includes sharing information with Canadian residents and citizens. Furthermore, other types of access and distribution controls are already available to governments under broadly-worded exemptions and exclusions in the Access to Information Act.

Our parliaments, government agencies and the judiciary simply do not need economic incentives to create government works. A government body produces press releases, reports and legislative publications to report on the work of government or further the aims of its policies and programs, not to make money off the people it governs.

What is Crown copyright?

Section 12 of the Copyright Act states that copyright belongs to Her Majesty (the Crown) when a work has been “prepared or published by or under the direction or control of Her Majesty or any government department…” The copyright term lasts “for the remainder of the calendar year of the first publication of the work and for a period of fifty years following the end of that calendar year.”  This language has remained virtually unchanged since 1921 when it was copied from the 1911 UK Copyright Act.

Section 12 gives governments the right to control the reproduction and re-use of government works in the same way that movie producers control the distribution of feature films and publishers control the copying of novels. That is, anyone sharing or re-using a substantial part of a government work without permission would be subject to a claim of copyright infringement. While a legal defense might include an exception to infringement, low levels of copyright literacy and institutional risk aversion make reliance on statutory exceptions unlikely, especially when a quick turnaround is needed (e.g., including a table in a government report in a web-based article or other publication). This puts Canadians in the absurd position of having to ask for permission to use works that they have already paid for through taxation and should already own.

Why does the legislation need to be fixed?

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Confusion created by this copyright provision hampers the visibility and impact of government programs and services. It also prevents librarians and archivists from providing Canadians with perpetual access to government information. Unfortunately, such hampering, paired with the removal or destruction of government information, increases the democratic deficit and could be described as censorship.

The confusing nature of section 12 cannot be overstated. Even our Supreme Court justices disagreed about the criteria that should be used to determine if a work is subject to Crown copyright in the first place. As stated in a 2019 SCC decision, “Parliament is of course free to consider updating the provision in its current review as it sees fit” (para 90). Law professor Jeremy de Beer says it best: “That language, combined with the Court’s quote about this legislative monstrosity, is about as blunt as judges can be about the need for statutory reform.”

Librarians and archivists are sometimes denied permission to reproduce and redistribute government works — works that have already been made available to the public. In addition to born digital web content being missed by Library and Archives Canada and the Internet Archive’s web harvesting work (and thus lost to posterity), digitization projects have been delayed — sometimes for years — or abandoned due to confusion about Crown copyright status and the associated legal rights to reproduce and share these works.

These denials and delays add to the fear of copyright infringement associated with the re-use of government works, a phenomenon known as copyright anxiety, leading to copyright chill. That is, user fear manifests as a decision not to exercise rights that might be available to them under statutory exceptions.

During the 2019 parliamentary review of the Copyright Act, many stakeholders explained how the current Crown copyright regime hurts Canadians. Importantly, no organization or individual who raised the issue of Crown copyright during the review supported its continuation in its current form.

The review served to corroborate and validate well-known concerns about the provision. It also shed light on lesser-known issues. These include the antiquated nature of the royal prerogative that opens section 12 and the ridiculous perpetual copyright term assumed for unpublished government works. Missing from the review were statements about how the work of government employees is hampered.

In all the scenarios described, it is clear that the current Crown copyright regime decreases the visibility and impact of the work of government employees, legislators and the judiciary.

What’s being done to fix Crown copyright in Canada?

Legislators have been aware of the need to fix Canada’s Crown copyright regime for at least 30 years. Former federal Justice Minister Robert Kaplan even tabled a Private Member’s Bill asking for its abolishment in 1993. Another Private Member’s Bill with the same goal was tabled by MP Brian Masse in 2019 and again in February 2020. It’s unlikely that the Bill will pass.

Librarians and archivists are sometimes denied permission to reproduce and redistribute government works — works that have already been made available to the public.Legislative change is rarely fast or easy, especially when it addresses powers held by Canadian governments. The final report of the 2019 Copyright Act review accurately summarized stakeholders input but, curiously, failed to provide a recommendation consistent with the same submissions. Instead, parliament recommended that an existing (and problematic) system of open licensing be continued and expanded … but only for content “in the public interest and for the purpose of public use, education, research, or information.” Much like the exemptions and exceptions in the Access to Information Act, this language is open to interpretation by the party in power and their appointees within the current government.

New governments often have an interest in creating a “clean slate” when they take office or want to remove content that casts doubt on their efficacy. Obviously then, policy that serves the public interest can only come from legislative reform, which is much more difficult to change by the governing party. Open licensing will only work if it’s legislated by default and uses an established, recognized open licence (e.g., Creative Commons public domain, CCO or attribution, CC BY).

Even more curious, the only legislative change in the parliamentary recommendation related to Crown copyright seeks to grant governments *more* control over their use of works subject to general copyright provisions. That is, the suggested legislative amendment does not consider works subject to Crown copyright at all:

That the Government of Canada introduce legislation amending the Copyright Act to provide that no Canadian government or person authorized by a Canadian government infringe copyright when committing an act, either:

• Under statutory authority; or
• For the purpose of national security, public safety, or public health.

Both the Conservative Party of Canada and the New Democratic Party used a post-appendix section of the same parliamentary report to state their support of abolishing Crown copyright outright.

At the time of writing, the Liberal minority federal government had not yet tabled legislative amendments pertaining to the Copyright Act review of 2019. It had, however, noted such changes in the ministerial letters to both the departments of Canadian Heritage and Innovation, Science, and Economic Development Canada.

In November 2019, representatives from both the library and archival communities began meeting regularly with government employees in these and other federal agencies. We are hopeful that these conversations will include more stakeholders and help inform legislative change that better serves the public interest. While copyright legislation is a mandated mediating factor between creators and users, it is not doing its job when it prevents citizens in a democratic country from sharing the output of its government.

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Tattooed celebrities are abundant; from Shawn Mendes’s fan-designed butterfly, to Drake’s “6 God” praying hands, to the elaborate artwork displayed on the bodies of professional athletes like basketball star LeBron James (by one account more than half of all active NBA players have tattoos) — the list goes on. Whether it’s angels or demons, expressions of faith, or names of family and friends who’ve been loved or lost, there’s no doubt a celebrity’s body art is an integral part of their personal brand, appearance and public identity.

It may be surprising to some that tattoo art, like other forms of art, is capable of attracting copyright protection. In Canada and the U.S., if a tattoo is an original work of art (not copied), is fixed in any tangible medium (e.g., inked on skin), and is not in the public domain, then it qualifies for copyright protection. Although there has been some legal debate as to whether the human body is considered a “fixed medium” for copyright law purposes, generally speaking, and as noted by the U.S. federal court in Whitmill v. Warner Bros. Entertainment Inc. (the case that dealt with Mike Tyson’s tattoo in The Hangover movie), “[o]f course tattoos can be copyrighted … I don’t think there is any reasonable dispute about that.”

Since copyright laws generally grant the owners of artistic works the sole right to control the use and reproduction of their works in all media (subject to some limited exceptions, including those noted below), any unauthorized use or reproduction of a celebrity’s tattoo in an e-sports game (e.g., NBA 2K20), movie (e.g., The Hangover), or other media may result in a copyright infringement claim — not to mention a trademark, publicity or personality rights claim, depending on the circumstances.

… any unauthorized use or reproduction of a celebrity’s tattoo … may result in a copyright infringement claim …When it comes to video games specifically, tattoo artists have sued celebrity athletes and game publishers for reproducing the tattoos of, for example, former NFL player Ricky Williams in the Electronic Arts’s sports title, NFL Street, and welterweight fighter Carlos Condit in the THQ game UFC Undisputed 3.

In the Solid Oak Sketches, LLC v. Visual Concepts, LLC et al. case (originally filed in 2016 but still making its way through the U.S. courts), at issue is Take-Two Interactive’s unauthorized reproduction of the tattoos of NBA stars, LeBron James, Stephen Curry, Kenyon Martin, DeAndre Jordan, Eric Bledsoe and late basketball legend Kobe Bryant in its NBA 2K video games. Solid Oak claims it purchased the exclusive reproduction rights from the original tattoo artists and never gave permission to Take-Two to digitally reproduce, distribute, or display the NBA stars’ tattoos in the games.

Take-Two argues its use of the tattoos was de minimis since the tattoos were not prominently featured in the game, which also includes 400 other NBA players. And, in any event, Take-Two says its use of the images should qualify as “fair use” since it would be impossible to realistically portray the individual NBA players unless their video game avatars capture their distinct tattoos and uniquely personal body art.

… there has been some legal debate as to whether the human body is considered a “fixed medium” for copyright law purposes …Interestingly, Take-Two relies in part on a declaration of support filed by James stating he personally contributed to the creative design of his tattoos, his tattoos are part of his “persona and identity,” and any reproduction of his image without his tattoos is not really a depiction of him. James reasoned that any use of his image, without his tattoos, undermines his publicity rights and deprives him of the right to license (and control) his own body and what he looks like as both a private person and a public basketball player.

James’s declaration raises some fascinating legal issues. Is he a “joint author” of his tattoos? Were his tattoos created as “works-made-for-hire” so that under U.S. copyright law James would be deemed the author and owner of the tattoos? Alternatively, does he have an “implied licence” to use his tattoos any way he wants? What about his right to protect his personal liberty and freedom of expression?

As fascinating or frustrating as these issues may be (depending on your standpoint), avoiding this legal complexity with a reliable degree of certainty is simpler than it may seem.

Obtaining the necessary rights and releases from those who own, create, collaborate on or display tattoos can be as simple as selecting a few carefully crafted sentences and ensuring the parties “get it in writing.” For example, instead of relying on de minimis and fair use defences, a game publisher could license the necessary rights to reproduce the tattoos from the tattoo rights holder to help alleviate this uncertainty.

… tattoo art, like other forms of art, is capable of attracting copyright protection.Similarly, a licence or release from a tattoo artist in favour of a celebrity athlete could simply state: (i) the tattoo is original (not copied), (ii) the artist owns or controls all rights (including copyrights) in the tattoo, (iii) the celebrity is allowed to use and reproduce the tattoo in any manner or media without restriction, and (iv) the artist waives all so-called “moral rights” in the tattoo. The waiver of moral rights is important as it will give the celebrity the flexibility to modify, enhance or remove the tattoo altogether, with or without crediting the original tattoo artist.

In the wake of the recent ink cases and as body art continues to become more mainstream, celebrities — and anyone who licenses or makes commercial use of their images — should take legal precautions to protect their interests in the celebrity’s personal brand and likeness, especially when pre-emptive and preventative action can be as simple as noted above.

Editor’s Note: After this article was originally published, a decision was released in Solid Oak Sketches, LLC v 2K Games, Inc and Take-Two Interactive Software, Inc (case number 16-CV-724-LTS-SDA). In the decision handed down on March 26, 2020, the court held that the Defendants did not violate Solid Oak’s copyright rights because:

1. the Defendants’ use of the tattoos was de minimis;
2. the Defendants had an implied license to display the tattoos; and
3. the Defendants’ use of the tattoos constituted fair use.

This article first appeared in The Lawyer’s Daily on February 25, 2020 and is reprinted with permission.