Photo By Andrej Lišakov (Unsplash)
Emily Prieur is an IPilogue Writer and a 3L JD Candidate at Queen’s University Faculty of Law
The Rise of Traditional Face Tattoos in Popular Culture
In September 2021, Indigenous model and activist Quannah Chasinghorse turned heads at the Met Gala wearing a gold cut-out gown by Peter Dundas and traditional Navajo turquoise jewelry. She was also recognized for her traditional Hän Gwich’in face tattoos, featured prominently on her chin and extending out from the corners of her eyes. Chasinghorse stated that the hand-poked lines, called Yidįįłtoo, represent overcoming generational and personal traumas. Her presence was a watershed moment for Indigenous representation at the Met Gala.
However, this moment was quickly met with disappointment after Angelina Jolie stepped out on the red carpet a month later for the world premiere of her new movie Eternals. In addition to her dress by Balmain, Jolie was adorned with a “chin cuff” which has since caused some turmoil amongst Indigenous peoples. Amongst others, Inuk throat singer Tanya Tagaq was quick to note the similarities between Jolie’s chin cuff and Kakiniit (traditional Inuit tattoos), much like the one Chasinghorse is now known for. Tagaq noted, “Kakiniit was banned by the colonialists. My mom said when she grew up it was only the very old elders that still had our traditional tattoos. Kakiniit was banned like our ceremonies and languages were banned. We have worked hard to revitalize our culture. To cast away the shame. Now Angelina Jolie wears it as a jewelry piece.”
These events point to two prevalent issues within the current legal framework: First, that current intellectual property laws do not properly acknowledge collective ownership over shared culture within Indigenous communities and second, whether tattoo designs have the potential to be protected through copyright laws.
Other Examples of Indigenous Cultural Appropriation in Canada
In 2009, the Hudson’s Bay Company (HBC) mass-produced sweaters as part of their official merchandise for the 2010 Vancouver Olympics. Much like the case of Jolie, the sweaters quickly became a topic of controversy, as the Cowichan Tribes of Vancouver Island alleged the sweater designs had been appropriated from one of their traditional designs. The Cowichan filed a lawsuit against the HBC, and they came to an agreement that the handcrafted authentic sweaters would be sold exclusively in the downtown Vancouver First Nations Pavilion and the Bay's flagship store during the Olympics. In 2015, the Cowichan Tribes were faced with the issue yet again when Ralph Lauren launched their own line of Cowichan sweaters. Charles Seymour, Chief of Cowichan Tribes, stated that their main issue with the sweater was the name. They appear to have come to an undisclosed agreement with Ralph Lauren changing the name of their sweater to Cowichan-inspired zip sweaters. The Cowichan could have had a stronger claim against Ralph Lauren, given that they had already turned their minds to protecting their intellectual property through trademark law. In 1995, the Cowichan Band Council with the Canadian Intellectual Property Office to register the word “Cowichan”. Their application was granted in 1997.
Collective Ownership Over Cultural Artwork
Canadian courts have not yet grappled with the issue of collective ownership of Indigenous artwork. The Federal Court of Australia explored this notion in John Bulun Bulun & Anor v R & T Textiles Pty Ltd. The applicant, Indigenous artist John Bulun Bulun, sought relief for copyright infringement of a bark painting, which R & T Textiles had used on t-shirts. The painting breathed life into a traditional story that the Bulun community has been passed down for generations. R & T Textiles admitted they infringed Bulun Bulun’s work but pleaded ignorance and pulled the shirts from their shelves. The court was tasked with determining whether the painting’s copyright belonged solely to John Bulun Bulun, or if the community collectively owned the copyright given that the ancestral teaching was shared amongst the community. The court was mostly silent on the issue of collective ownership, recognizing Bulun Bulun as the legal title holder. However, the court concluded the situation gave rise to unique fiduciary obligations that Bulun Bulun owed to his community.
The World Intellectual Property Organization also acknowledged collective ownership as a potential method to protect Indigenous knowledge. In a 1999 working paper, a proposed solution was to identify a community Elder who recorded the knowledge to prove the source of ownership and then assign the intellectual property right in the name of the community. The paper noted that this solution would be particularly helpful in situations where oral history is the most identifiable source of ownership.
Current State of the Law on Tattoo Designs
It is likely that tattoos would fall under the Copyright Act under section 5(1), which delineates artistic works as expressions through visual medium. Tattoos are arguably expressions through visual medium. Of note, in DRG Inc. v Datafile Ltd., the Federal Court ruled that legal protection of works is not restricted based on the medium in which it is presented.
Canada has never ruled on an issue of copyright ownership over tattoos; however, Canadian courts may look internationally to assist them in determining how or if they should be protected. In 2009, the Belgian Court of Appeal was tasked with deciding whether a tattoo could be granted ownership under Belgian copyright law in JDH v JM. The court ruled that the tattoo artist did in fact own the copyright in his tattoo design; however, he was limited by the personality rights of the person he tattooed. Notably, Belgian copyright law includes a statutory right to privacy, which includes the right to control your image. The Canadian Copyright Act does not include such a provision (but Canada does have the common law tort of 'wrongful appropriation of personality'). The United States has also ruled on the issue. In Alexander v Take-Two Interactive Software, Inc., a tattoo artist sued Take-Two, a video game producer, for copying tattoos the artist had inked on a World Wrestling Entertainment (WWE) wrestler. However, the wrestler had licensed their likeness to WWE, who in turn licensed it to Take-Two. The court held that the tattoo artist holds valid copyrights for the tattoos, and that there is no implied license from the tattoo artist to use their tattoos as part of the bearer’s likeness.
Going Forward
The concept of collective intellectual property rights as a means of protecting cultural artwork and stories is in its infancy, but should be explored. If traditional Inuit tattoos are ever used for commercial gain in Canada, a particular Inuit community could seek relief from the Federal Court. It is presently unclear if the court would recognize collective ownership over copyright.