Lovers of comedy films rejoice! The sequel of an outrageously popular movie is allowed to premiere on schedule. Although, it was a close call. Most readers would be aware that a famous ex-boxer who sports a distinctive face tattoo – which has also been replicated in the film – was the subject of an action by the artist of the tattoo, who sought an injunction to prevent the release of the film arguing that the copyright of his creation had been infringed. The injunction to stop the film from being released on schedule was ultimately unsuccessful, but the case of copyright infringement against the movie studio will still go ahead at a future date. This got us thinking: can a tattoo be protected under copyright law in Australia? Read on and find out.
How does copyright work in Australia?
Copyright protection in Australia is automatic, and does not require the work to be registered, be submitted to an authoritative body, or payment of a fee. However, in order for a work to be protected by the Copyright Act (the Act); the following conditions must be met:
• submission of a copy of the work to the National Library within a month after publication
• the work must be published in Australia or a country that belongs to an international copyright convention
• the author is a citizen or resident of Australia, or a country that belongs to an international copyright convention
• the work must be original.
The overarching requirement for a creation to be protected by copyright law is that it must be original. Although, the Act does not define what constitutes ‘originality’, case law has ruled that any work which was the result of substantial labour, skill and knowledge can be considered as a copyrighted work.
A face tattoo might find further protections in the Act if it is seen as an artistic work. The definition of what is considered to be an artistic work is widely defined, and may include paintings, sculptures, drawings, engravings or photographs – irrespective of the quality of the creation.
When does copyright infringement occur?
Copyright is infringed when a substantial part of the work is reproduced. Again, the Act does not define, ‘substantial’, but case law has ruled that the quality of what is taken from the original work is what should be taken into account. Ultimately, the test in deciding whether or not a work infringes on copyright rests on the analysis of whether an important or distinctive part of the original piece was copied.
Although, “the case of the face tattoo” is to be heard in the U.S. the final decision may have an impact on Australian law due to the fact that it is a signatory to numerous international copyright treaties.
Perhaps we should just celebrate the fact that we all get to enjoy the film.
