In a decision rendered on May 17, 2023, Taipei District Court held two tattoo artists liable for copyright infringement by using copyrighted artwork to create tattoo for their customers.
According to the complainants, who are also tattoo artists, the Mandala and flower designs (see below) are all creative artworks that are eligible for copyright protection.
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The complainants alleged that defendants’ tattoos (see below) are
illegal copies created by using the complainants’ aforesaid copyrighted artworks.
The defendants contended that the Mandala and flower artworks alleged by the complainants are all natural forms that are too common to be protected as copyrighted work. In addition, the defendants denied any contact with complainant’s works, and argued that the defendants’ tattoos are substantially different from complainants’ works.
Taipei
District Court found for the complainants, reasoning that:
1.
The
threshold for copyright protection is not as high as that for patent. The work
need not be novel. Instead, a minimum degree of creativity that could reflect
the author’s originality would be sufficient.
2.
While
Mandala illustrations usually demonstrate similar pattern, i.e., drawn from the
central point and surrounded by symbols or decorations that are connected and
interrelated, the choice of pattern, color, and configuration may vary, and
could demonstrate an artist’s creativity. Similarly, artworks featuring natural
forms like flowers may also be eligible for copyright protection, for the
style, color, and overall composition of the flower, its pistil, and petal
could demonstrate the author’s originality. Here, the Court finds the complainants’
artworks demonstrate sufficient creativity that render the Mandala and flower
designs eligible for copyright protection.
3.
As
to access of artwork, the Court reasons that while there is no evidence showing
direct contact, the facts that both complainants and defendants are tattoo
artists, and that both the defendants and complainants would share their tattoo
works on social medial like Instagram and Facebook, justify an inference that
it is likely that defendants may access complainants artwork via their social
media networks.
4.
As
to similarity analysis, the Court agrees with the expert’s opinion, finding
that the defendants’ tattoos are derivative works based on complainants’
copyrighted artworks. Under the “total-concept-and-feel” test, while there are some
differences between defendants’ tattoos and complainants’ artworks, the
similarity between defendants’ and complainants’ works is still so high that the
Court finds it difficult to believe it is based on defendants’ independent
authorship, not copying.
5.
Based
on the forgoing reasons, the Court is convinced that the defendants violate Copyright
Act by, without complainants’ license, creating derivative works based on
complainants’ copyrighted artworks.
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