Month: August 2025

It’s the Pot Calling the Kettle Black: US State Dept Human Rights Reports Criticizes Freedom of the Press in Canada

A kettle labeled 'CDA' next to a pot labeled 'US' over an open flame, surrounded by smoke in a natural outdoor setting.
Image: Shutterstock (AI assist)

Earlier this month the US State Department released its annual report on Human Rights in over 190 countries. As usual, there was a country report on Canada. What was less usual was the report’s negative focus criticizing the state of press freedoms in Canada. It seems that as press freedom has declined in the US under Trump 2.0, the MAGA interpretation of how other countries should conduct themselves has ramped up. If there was ever a case of “the pot calling the kettle black”, this is it.

The US Government, through its various departments, issues a number of annual reports, most of them mandated by Congress. Many of them, such as the National Trade Estimates Report on Foreign Trade Barriers or the Special 301 Report on intellectual property (IP), both issued by the Office of the US Trade Representative, are commentaries on the practices of other countries. While these reports can be useful in highlighting trade-distorting measures or areas of weak IP enforcement or legislation, no-one could accuse the US Government of consistency between the practices it identifies and comments on, and many of the practices that the United States itself follows. One good example is in the area of copyright law, where the annual Special 301 Report takes various trading partners of the US to task for numerous transgressions and/or loopholes in copyright protection. But as I pointed out in a blog last year (The USTR “Watch List” Designation You Will Never See), the US hardly has clean hands when it comes to some key copyright issues, such as an unwillingness or inability to institute a site-blocking regime to fight offshore streaming piracy, something that more than 40 other countries have managed to do, and the inadequacy of US law in protecting performance rights of US and non-US artists for music played on terrestrial radio stations, among other issues. The fact that the US is the leading source of online piracy globally with 13.5 billion visits to piracy sites annually does not seem to be enough to get a US site-blocking regime over the goal line in Congress.

The same is true in spades for the trade sector with the advent of the Trump Administration and its practice of unilaterally, arbitrarily and seemingly randomly setting import tariffs (Brazil 50%, Canada 35%, Mexico 30%, China 30%–for now, EU 15%, Japan 15%, Australia 10%, etc,) in defiance of just about every international trade agreement the US has ever signed.

The most recent example of this phenomenon of “say one thing but do another” is the US State Department’s Report on Human Rights in Canada particularly with respect to Section 2 and its hypocritical criticisms of Canada’s “Freedom of the Press”.  A particular bugbear for the State Department is the Online News Act (ONA), legislation that came into force in 2023, based on similar legislation in Australia. (Note that the State Department’s report on Australian human rights does not even mention the similar Australian legislation as an issue). The objective of the ONA, to quote the Canada Gazette, is to seek “to capture the largest and most prominent digital platforms that operate in the markets that have a strategic advantage over news businesses” in order to introduce “a new legislative and regulatory framework that ensures fair revenue sharing between digital platforms and news businesses”. Certain market criteria were applied to scope in the targetted platforms (annual global revenue exceeding $1 billion, must operate a search engine or social media market, minimum 20 million average monthly unique visitors in Canada). As a result, only two entities were subject to the legislation, Google and Meta (Facebook, Instagram). As noted, the ONA mirrored similar legislation passed in Australia a couple of years before. It was also very similar to legislation introduced, but not passed, in the US Congress, (the Journalism Competition and Preservation Act) and to legislation enacted in California. Basically, it required the large digital platforms to pay for their use of news content, content that the platforms used to attract viewers and thus sell ads.

It would be fair to say that the results of the ONA in Canada were mixed. After much uncertainty, threats and lobbying, Google carved out an exemption for itself by agreeing to contribute (CAD) $100 million annually to a fund to support Canadian journalism (while eliminating contributions it was already making to some chosen journalistic enterprises). META took an alternate route by supposedly exempting itself from the reach of the legislation by blocking all coverage from Canadian news sources, claiming that it derived no commercial benefit from having news coverage on Facebook or Instagram. This seems to reflect a global decision by the company to refuse to acknowledge any value from–or willingness to pay for–news content. META’s earlier deals in Australia are not being renewed. Australia is not amused and is considering various courses of action.  

The funding from Google was welcomed by Canadian media outlets, many of them small. As in the US, most news media enterprises in Canada, whether print, digital or broadcast, are struggling as digital platforms have taken over the ad markets that previously supported news media and news journalism. Consumers have gone online for news yet are reluctant to pay for it. The Google funding, plus taxpayer-funded Local Journalism Initiative Funds and tax credits allocated to “Qualified Canadian Journalism Organizations” (QCJO), have helped prevent more areas of the country from becoming news deserts. According to CBC, eligible media outlets employing a qualified journalist will receive between approximately $14,000 and $17,000 annually per journalist from the Google funding, with smaller and digital outlets being on the higher end of the scale. You would think that these efforts to preserve independent journalism would be considered a good thing and might even be applauded by the US State Department in its report on Canadian press freedoms. You would be wrong.

The State Department’s most current (2024) criticism of Freedom of the Press in Canada contains four essential points;

  1. The Government of Canada used a variety of mechanisms to fund public and private sector media in the country.
  2. The Online News Act empowered the CRTC to set mandatory guidelines between digital platforms and news businesses.
  3. The Federal Court upheld the government’s decision to deny tax credits to an “independent news organization” (Rebel News–not specifically named in the State Department report) because it failed to meet the program’s criteria as a qualified journalism organization.
  4. The “Changing Narratives Fund” component of the Local Journalism Initiative, designed to support “diverse communities” (defined as including Indigenous, Black, racialized, ethno-religious minority, people with disabilities and 2SLGBTQI+ communities) discriminated against journalists who fell outside these “favored” categories. 

Let’s look at these allegations in turn. The Government of Canada, as is the case with many governments including, until recently, the US Government (which fully or partially funded media organizations including National Public Broadcasting, PBS, and Voice of America), provides various support measures for Canadian media and publishing, such as the Canadian Periodical Fund, the Local Journalism Initiative (LJI) and the Journalism Tax Credit. To ensure that only bona fide organizations qualify for the tax credit, there are transparent criteria to become a Qualified Canadian Journalism Organization (QCJO). An independent advisory board composed of journalism experts drawn from current and retired faculty members from post-secondary journalism schools across Canada, as well as some in the journalism industry, makes recommendations as to who qualifies . As for the LJI, it is also adjudicated by an independent panel of experts.

With respect to government support programs, the State Department alleges that “News organizations faced direct and indirect pressure to conform their political speech in order to gain or maintain access to these funds, leading to self-censorship”. How did they reach that conclusion. Who knows? Not the slightest evidence is put forward to support this dubious proposition.

As for the Online News Act, the report states that “The law empowered the Canadian Radio-Television and Telecommunications Commission to set mandatory bargaining guidelines between platforms and news businesses and to otherwise enforce and set regulatory guidance for the act, including codes of conduct and eligibility of news businesses to participate, powers which could be used to discriminate against political speech or disfavored independent media outlets.” Huh? The only funding that emerged from the ONA was Google’s $100 million. The CRTC has no role in its distribution. It is administered by a non-profit organization, the Canadian Journalism Collective, established for this purpose by a group of independent publishers and broadcasters, and selected by Google to manage distribution of the funds. As for META, which stonewalled the ONA process and eventually picked up its ball and went home, blocking distribution of Canadian news on its platforms to avoid paying a nickel to support news gathering in Canada, the State Department manages to blame Canada for the resulting news blackout, which it equates with “censorship”;

Rather than participate in government-mandated bargaining, some American digital platforms announced that they would no longer make news content available to Canadian users, leading to substantial censorship of news content including local news content.

This is a quibble, but censorship is defined by the Oxford Dictionary as “suppression or prohibition of any parts of books, films, news etc that are considered obscene, politically unacceptable or a threat to security“. What META did by blocking all Canadian news was certainly unacceptable but it definitely wasn’t censorship.

As for the State Department championing Rebel News (an alt-right website often compared to Breitbart News in the US) in the website’s attempt to qualify for the journalism tax credit, is the US State Department implying that the Canadian court system does not support freedom of the press? These are the facts. Rebel News appealed the denial of QCJO status to the Federal Court. It lost for good reasons. The Federal Court upheld the decision of the Canada Revenue Agency to deny the outlet’s application for QCJO tax credits because it failed to meet the key criteria of producing original news content. On a review of 483 articles published by Rebel News, less than one percent was deemed original, the rest being either opinion or republished material. (These are the very same tax credits that earlier in the Report were criticized for leading to self censorship of news organizations, so according to the State Department, it’s bad if you take them and it’s bad if you can’t get them.).

As for the Changing Narratives Fund, it is an additional $10 million (i.e. new money) in funding over 3 years provided to the Local Journalism Initiative. It is hard to understand how that undermines press freedom in Canada.

Let’s look at the equivalent State Department Report on Canadian human rights in 2023, which had this to say about press freedoms;

“An independent media, an effective judiciary, and a functioning democratic political system combined to promote freedom of expression, including for media members. Independent media were active and expressed a wide variety of views without restriction”.

Gee, how could it all go so wrong in just a year? The tax credits and local journalism funding have been around for quite a while. The ONA brought in around $100 million in new funding to journalism. There is room for valid criticism of the role of the press and press freedoms in Canada (the RCMP have been pretty heavy-handed with journalists at protest sites for example) but what really changed was the arrival of the MAGA crowd in Washington.

But if the criticisms of Canada’s press freedoms reek of the Trump Administration’s domestic US agenda, it is the hypocrisy of attacking the freedom of the press in Canada that really sticks in my throat given the current declining state of press freedoms in the US. Apart from the fact that– according to the Reporters Without Borders’ Press Freedom Index— the US places 57th out of 180 countries (Canada ranks 21, UK 20, New Zealand 16, Australia 29), there is plenty of evidence that press freedoms in the US are on a steep decline, despite the courage of some US media outlets in fighting back. I personally don’t give the Press Freedom Index that much credibility (it strains credulity to place the US below Panama, Moldova, North Macedonia and a few others), but it is more difficult to dismiss the views of the New York-based Committee to Protect Journalists who report that 100 days into Donald Trump’s administration, press freedoms in the US are no longer “a given”. The Committee’s Special Report, “Alarm bells: Trump’s first 100 days ramp up fear for the press, democracy”, states clearly that;

“The first 100 days of the Trump administration have been marked by a flurry of executive actions that have created a chilling effect and have the potential to curtail media freedoms. These measures threaten the availability of independent, fact-based news for vast swaths of America’s population.”

Trump’s $20 billion lawsuit against CBS, cravenly settled by Paramount, is one prominent example. There are many others. The White House banned Associated Press reporters from the press pool after the outlet refused to follow an executive order renaming the Gulf of Mexico the Gulf of America. The Wall Street Journal was banned from the press pool covering Trump’s recent trip to Scotland over its coverage of the Jeffrey Epstein affair, which Trump didn’t like. As Donald Trump has weaponized the US government against any elements of the US media he doesn’t like, at any given moment in time, the US reputation as the “gold standard” for press freedom and investigative reporting is dropping like a stone. Now it appears that the US State Department has been enlisted to do the Administration’s dirty work, and to peddle its view of how the world should be run, through its Human Rights Report.

I don’t really blame the authors of the report. If they hadn’t already been fired for not being doctrinally correct, they were just doing what they were told to do—push the Trump agenda by whatever means available. In picking on freedom of the press in Canada, they come across as particularly hypocritical and biased, undermining whatever reputational impact the State Department’s Report on Human Rights used to have.

If this is not a case of the pot calling the kettle black, (with very little substantiating evidence to back up the accusation) then I don’t know what is. Maybe it’s just a lot of hypocritical hot air.

© Hugh Stephens, 2025. All Rights Reserved

“Just the facts, Ma’am”: Facts and Copyright

Historical scene depicting a gathering in a church, showcasing a group of people, many in period costumes, attentively listening as a military officer reads a document. The setting features wooden benches and large windows, suggesting an atmosphere of important decision-making.

Painting by C.W. Jeffreys, Public Domain via Wikimedia Commons

Resurrecting this 1950s-era Joe Friday (played by Jack Webb) quote from the TV series Dragnet may date me but it is a classic. The request seems so simple.  Just the facts, and nothing but the facts. Facts are integral to interpretation of copyright law because “the facts” cannot be copyright protected. As almost everyone knows–but it bears repeating–copyright does not protect ideas or facts, only original expressions of ideas (and expressions that may be based on facts). Thus, Van Gogh’s painting of a vase of flowers could be copyright protected, but anyone can paint their own version of flowers in a vase. Winston Churchill wrote several copyrighted volumes about his interpretation of what happened in the Second World War, but the circumstances and facts of that conflict are open to anyone to write about. I was thinking about history and facts this summer when my wife and I visited one of Canada’s National Historic Sites, Grand Pré in Nova Scotia, site of the “Acadian Expulsion”. (known in French as Le Grand Dérangement).

The “facts” are probably generally if imprecisely known to many, especially in Canada and the US. The reasons why it happened, also part of the narrative, are less definitive. Here are the essential facts. In 1755, the British governor of Nova Scotia, Charles Lawrence, ordered the removal of some 6,000 Acadians settled in the areas of the Fundy marshes, close to present day Wolfville, NS. It was a brutal event; the settlers’ houses were torched, livestock killed, families often separated. The Acadians were widely scattered, with many being settled in the New England colonies and later in Britain and France. They were not, contrary to popular belief, deported to Louisiana, but many of those who eventually ended up in France were recruited by the Kingdom of Spain to settle in Louisiana, at that time under Spanish control. Spain wanted reliable Catholic settlers for colonization purposes. This is the foundation of the Cajun (Cadian) people of Louisiana. Some members of the Acadian diaspora eventually found their way back to what are now Canada’s Maritime provinces. Their return was permitted after 1764 following the defeat of France in North America and the fall of Québec. They settled largely on the north shore of what is now New Brunswick since New England Planters from the Thirteen Colonies had taken up much of their original lands. This part of New Brunswick has become an Acadian stronghold, and a strong sense of Acadian nationality and pride has developed over the years. Today it is common to see Acadian flags flying, and the Acadian star adorning houses in areas where Acadians reside.

The resurgence of Acadian awareness and pride can, ironically, be traced to a 19th century American poet, Henry Wadsworth Longfellow, who in 1847 published the opus “Evangeline”. This was a poetic work of fiction based loosely on the Acadian Expulsion (or Upheaval, as it is sometimes called), centred around a deported Acadian heroine, Evangeline, who for years engaged in a fruitless search for her deported betrothed, Gabriel, only to find him in Pennsylvania on his deathbed many years later, afflicted by the plague. As a work of fiction, Longfellow’s work was of course copyrighted. The poem was his expression of what had happened to the Acadians. Given its date of publication, its copyright protection has long since lapsed, and it has been in the public domain for many years. But behind Longfellow’s epic poem, and a few other early works written about the Acadians, (offering various interpretations and perspectives), there are “the facts” explaining what actually happened, and why. But what did actually happen? What are the bare facts?

You would think it would be relatively straightforward to recount the factual story but recall this all happened 250 years ago. The most public display of “the facts” is at the Grand Pré exhibition hall, run by Parks Canada. And this is where it becomes somewhat difficult to get to the unvarnished truth, “just the facts”.

The site is a place of pilgrimage for Acadians, part of their national story. People come to visit the Evangeline Chapel built in 1924 when the site was first established as a memorial. But one must not forget the Mic’maw people who populated the area before the Acadians arrived, and after they left. They are still around, still active and very vocal. And then there are the New England settlers who were brought in to take over the lands of the Acadians and establish a “loyal”, non-Catholic presence. Many of the current residents of rural areas of Nova Scotia are direct descendants of what is known as the New England Plantation. In addition, there is the interpretation of the positions of the then British and French governments, and the role they played, and the responsibility they bore. The display panels at the Grand Pré site, in English and French, do a good job of trying to manage the interpretation of the facts in a way that meets contemporary needs, or at least will offend the least possible number of people!

While we were at Grand Pré there was an historical re-enactment. An actor dressed up as an Acadian told us about the shock of the expulsion, being separated from her children, and so on  but then in an aside made it very plain that the New England settlers who arrived a year or two after the Acadians had been forcibly removed were not to blame for the expulsion. In fact, when it came to explaining the reasons for the expulsion, there were several different options to choose from in the interactive displays. It was clear that the Acadians were expelled for refusing to take the oath of allegiance to Britain, which was the governing power in Nova Scotia since the area had been ceded to them by the French in 1713 in the Treaty of Utrecht. That treaty still left the French in possession of Québec and what today is called Cape Breton Island, where they established the fortress of Louisbourg. Those French fortresses were perceived to pose a threat to the English settlements further south, including Rhode Island, Massachusetts, and Connecticut. Between the French and the English settlements lay Acadia, governed by Britain but populated largely by French speaking settlers whose loyalty was, at best, dubious. Some had actively aided French expeditions sent south to penetrate the area, although others had remained neutral.  Was it unreasonable for the British to be concerned about what in later years would be called a “Fifth Column” in their midst? Was it unreasonable to pressure the Acadians to pledge loyalty to Britain, which some did but most resisted? I guess it depends on your point of view and the judgement of history.

But what about the Acadians? Why didn’t they accept their fate and realize they had been abandoned by France? Perhaps they had hopes that the outcome of Utrecht would be eventually reversed (since Britain and France seemed to go to war with each other every 10 years or so). Or was it because they were concerned their Catholic faith would be in jeopardy, given that Britain would not guarantee this? Another theory has it that the Acadians, who had a close but not completely satisfactory relationship with the powerful Mik’maw, were afraid that they would be subject to attack if the Mik’maw thought the Acadians were accommodating the British. There were no doubt many reasons for their refusal.

The Mik’maw also play a role. They were originally dispossessed by the Acadians, but had been converted to Catholicism, and thus there was a certain bond between the two groups. Apparently intermarriage was not infrequent. The Mik’maw fiercely resisted the British for a number of years to the point that Governor Edward Cornwallis offered a bounty for Mik’maw scalps. This has put Cornwallis, who founded Halifax and who is considered the father of Nova Scotia, in bad odour in today’s climate of reconciliation. (Edward was the uncle of Charles Cornwallis who surrendered British forces to George Washington in 1783). Cornwallis issued his proclamation after the Mik’maw had attacked and killed settlers. Today that would be called defending your land. Who is right? What are the “facts”?

You won’t find “just the facts” in Longfellow’s poem, or even definitively in the Parks Canada panels at Grand Pré describing the events of the day. As I noted, great effort has been made to present all views and, presumably, to let visitors decide for themselves as to what led to the Expulsion. This interpretation of the “facts” by Parks Canada historians, who have to answer to all segments of public opinion, could certainly be copyrighted as one expression of what happened. I am not aware that copyright has been asserted although it is possible that the interpretive panels and content are under Crown copyright. That would be appropriate as the “balanced and blended” interpretation of the reasons for what happened to the Acadians between 1755-1764, and why, is still only one version. Joe Friday didn’t realize what a complicated question he was asking when he uttered that famous expression, “Just the facts, ma’am”.

© Hugh Stephens 2025. All Rights Reserved.

Paywalls and News Publishing: There Should be No Ambiguities

An illustration of a laptop displaying a padlock icon, surrounded by images, documents, and a credit card, symbolizing online content security and paywalls.

Image: Shutterstock.com

In trying to search for the right analogy to explain the obvious,–i.e. if a news organization puts up a paywall, it is illegal to bypass or hack it to get at the content and, if you’ve paid for access, that doesn’t mean you can share it with all your friends–I have come up with the old-fashioned movie ticket as the comparator. When there is a show at the local cinema you want to see, there is normally only one legal way to watch it. Buy a ticket. And once you have used your ticket to watch the show, you don’t get to give it to someone else to see the next showing, and the next, and the next. Perhaps this is all too obvious, yet people seem to have great difficulty in getting their heads around the simple fact of what a news site paywall is, and why it is there. It’s really pretty simple. It is there to provide access to content (like a ticket) but also to limit access (for those who don’t have a ticket). It is the basic element of the online business model, for news access certainly but also for other forms of content, such as streaming entertainment.

I don’t understand why some people think they should have free access to content that others pay for. There is always someone who wants to beat the system and then thinks up some excuse to justify their actions. I freely admit that paywalls can be annoying, especially if you are surfing the web and come across a random article that you want to read in the Moose Jaw Monitor or the Peoria Progress. It’s almost always all or nothing. No free samples; just an annual subscription, although likely discounted for the first year. But if all you want is that one article there never seems to be a “pay by the item” option. It’s all or nothing. I have come to the conclusion that in most such cases I can either live without it or sometimes, if I search hard enough, I can find the same thing elsewhere, unpaywalled. What I don’t do is hack it.

A recent discussion of the ethics of paywalls examined the thorny question of whether it was ok to cheat—but just once in a while and under certain circumstances. The unconvincing conclusion: it depends. However, if you believe in the value of curated news–and most people do although they are remarkably resistant to paying for it (a recent Pew Research Center survey indicated that 83% of Americans had not paid for news in the past year; in Canada the numbers are comparable with 15% saying they were willing to pay, up from 11% a year earlier)—then it is only logical that the more free rides people take, the less responsible news coverage is going to be produced. You are eating your own seed grain. As someone put it, the garbage is free and the quality stuff has to be paid for.

The most recent example of success in combatting paywall-busters was the recent announcement that the News Media Alliance, the trade association in the US for major news publishers, had secured the removal of a website that existed to enable users to bypass paywalls, known as 12ft.io. It was self-described as a 12 ft. ladder to get over a 10 ft. wall. According to an article in the Verge, the site also allowed users to view webpages without ads, trackers, or pop-ups by disguising a user’s browser as a web crawler, giving them unfettered access to a webpage’s contents. Now it is out of business. The Alliance doesn’t say how it achieved this feat but does say that it will “continue to take similar actions against other purveyors of unauthorized paywall bypassing technologies.”

While certain elements of the public (academics? other journalists? researchers?) seem to think they can lay claim to justifications to bypass paywalls, an act that is illegal in both the US and Canada if a “technological protection measure” (TPM), aka a digital lock, is circumvented, the most egregious example of paywall-busting is the Government of Canada itself, the same government that is responsible for the Copyright Act. As I have noted a couple of times, (“The integrity of journalism paywalls is under threat. The Government of Canada should settle the Blacklock’s case”; “Does the Trudeau government really support Canadian media? Saying One Thing but Doing Another”), if the Government of Canada, which spends millions on media and communications, cannot be bothered to obtain a licence to access paywall-protected material, how can they expect ordinary citizens to respect paywalls.

 The issue is the $148 individual subscription taken out by an employee of Parks Canada back in 2013, a subscription that the Government of Canada through the Attorney-General argues should allow it to reproduce and pass around individual articles within a large government department without obtaining an institutional subscription. This all hinges on a complicated case, originally brought by Blacklock’s Reporter, an online investigative journalism enterprise, but then pursued by the Crown after Blacklock’s withdrew, in which the A-G argued that it was entitled to access the paywalled content on the basis of fair dealing. While it is illegal to circumvent a TPM/digital lock for the purpose of accessing TPM-protected content, the issue was whether a password constitutes a TPM. Logically, I think most people would assume that it does, but the judge ruled that evidence had not been presented to conclude that was the case.

One line of argument is that a password is not a digital lock; rather it is a digital key to a digital lock (TPM). Therefore if someone licitly obtains the key (the password), are they entitled to share it with others as long as the purpose of the sharing is for a fair dealing purpose, such as research or education? That is the nub of the issue. Some observers proclaimed that this case proved that fair dealing trumped or allowed the bypassing of a TPM. That was not the court’s conclusion, as I pointed out (here) but the ruling effectively gutted password protection for businesses. A recent internal memorandum produced for the Minister of Canadian Identity and Culture by his department noted that “The use of passwords to limit access to copyright protected content is a common business practice among online platforms including news sites, streaming services and video game digital distribution services,” …“Rights holders may be concerned that passwords and paywalls are no longer seen as effective technological protection measures.”

The ruling is now under appeal, with a decision expected later this fall. Blacklock’s is a small David pitted against the taxpayer-funded, deep-pocketed Goliath of the Government of Canada, but I understand they may be getting some financial help from other paywall-dependent businesses. I hope so. The right thing to do would be for the Government of Canada to settle with Blacklock’s but maybe this wouldn’t remove ambiguities about the role of paywalls. An appeal court ruling may be needed. Stay tuned.

In the meantime, inconvenient as it may be, and recognizing that it is impossible to subscribe to everything you could possibly want at any given time, respect the integrity and the work of the journalists and their employers who bring you curated news, commentary and valuable reportage. Pay for what you can–and play by the rules for the rest.

© Hugh Stephens, 2025. All Rights Reserved.  

Having Some Skin in the Game: The Copyright Challenges of Tattooing

A tattoo artist inked intricate designs on a client's arm in a well-lit studio.

Image: Shutterstock.com

It seems that wherever I go these days, I inevitably run into tattoos, some very creative, some less so. They are on the arms, legs, necks (and no doubt other parts of the anatomy) of servers and cooks in restaurants, entertainers, hairdressers, university professors–butchers, bakers and candlestick makers. I don’t have any but that marks me as “Gen BT” (between tattoos). Before I came along, sailors and other hardy types liked to sport at least one discreet tattoo on their forearm, often something patriotic. Then having a tattoo kind of fell out of fashion as I was growing up, and tattoos became the domain of gang members and bikers. However, by the 1970s and 80s we were starting to see a resurgence of tattoo popularity and wider acceptance, beginning with Janis Joplin, Cher and others, and it’s only grown since.  Tattoos became art, a form of expressing one’s personality. No longer did you have to go to the midway to see the tattooed lady; she was probably serving your burger and fries! Having survived this long without inking my torso, I think I will continue to abstain, but I am probably bucking a trend.

According to the Pew Research Center, 32% of Americans have tattoos, 22% having more than one. But will this trend last? Some evidence suggests that we may be approaching “peak tattoo”, with tattoo artists complaining of a slowdown caused by rising costs and oversaturation of the market. Apparently ink and gloves have more than doubled in cost, and the demand has flattened. I guess there is just not enough virgin skin waiting to be inked to keep all artists happy.

However, economic conditions and fickle demand are not the only challenges facing tattoo artists. Some artists create their own designs but for others, keeping a client happy might mean pushing the creative limits a bit, especially where there is demand for designs or artwork belonging to others. Enter the copyright factor. First, for those artists who create their own artwork, these creations can be protected by copyright law just as any other creative artform, assuming they are original. Copyright law also requires the work to be “fixed” (perceivable) in a tangible form. This can be on canvas, paper, via the medium of photography, carved, sculpted, etc. (This raises the question of copyright protection for original ice sculptures and sandcastles, as I discussed in an earlier blog—“My Fixation with Fixation”–a few years ago).

Tattooing on human skin certainly qualifies as “fixation”, even though the medium on which the work is fixed belongs to someone else. Unless there is an agreement to the contrary, the tattoo artist holds the copyright to the design, just as an artist retains copyright over a painting they have sold. The purchaser owns the painting and the canvas but does not own the copyright to the work. (For example, the owner of the painting cannot make reproductions without the permission of the copyright holder). A similar parallel can be drawn to tattoo art. But it’s a bit more complicated than a painting because the “canvas”, i.e. the skin of the wearer of the tattoo, is part and parcel of the person wearing it. When that person, let’s say LeBron James, plays in front of thousands of people, he is on display, tattoos and all. So, what happens when a videogame company creates an online game starring an avatar of James which, for realism, features his tattoos? Although the videogame company, Take Two Interactive Software, had an agreement with James to use his likeness, the tattoo artist (Jimmy Hayden) who created the tattoos and inscribed them on the athlete’s shoulder claimed his rights were infringed. Let the copyright litigation begin.

In this case, which went to a jury to decide (in Canada, copyright cases are decided by judge alone in the Federal Court), the defendants, Take Two, were vindicated with the jury ruling the company had an implied licence to use the tattoo since it had obtained a licence to use James’ image through the NBA Players Association. The tattoo was an integral and indivisible part of James’ image. However there have been other US cases where the tattoo artist won. Take Two lost a case in 2022 when it had copied on to an avatar the tattoos featured on World Wide Entertainment (wrestling) star Randy Orton. The tattoo artist was awarded $3,750 in damages. (On appeal, the denial of the defendant’s fair use claim was upheld, but the damages were dismissed for lack of substantiation). These unpredictable and contradictory outcomes illustrate the capriciousness of jury rulings in copyright cases, an issue I will come back to later.

It appears there is no legal “right answer”, at least in the US, to the question of whether a person with a tattoo needs to obtain a licence from their tattoo artist when they market their own persona, although from a commonsense perspective, I think the outcome of the LeBron James case makes sense. James is famous because of his prowess as a basketball player, not because of his tattoos which are incidental to his monetary value. In the case of the creator of a painting, the value is in the artistry that has gone into the expression of the work, whereas in the case of a tattoo on an athlete, the tattoo artist has largely gone along for the ride. The James case is actually good news for tattoo artists too. If athletes fear limitations on the licensing of their image, this will chill the market for tattooing.

There is another well-known example of a dispute between a tattoo artist and a prominent, well-heeled company where a tattoo that was largely incidental to a wider story became the subject of potentially very expensive litigation. This was the case of Whitmill vs Warner Bros back in 2011. Whitmill had designed and inked a tattoo (based on a Māori design) back in 2003 on boxer Mike Tyson, over the boxer’s left eye. Fast forward to 2011 when the Warner Bros. film “Hangover II” was about to be released. Tyson had made a cameo appearance in “Hangover I” (tattoo and all) and in the sequel one of the actors, Ed Helms, wakes up in Bangkok after a night of partying with an identical tattoo over his eye. Whitmill sued for copyright infringement and sought an injunction to prevent release of the film (The Hangover: Part II). He had registered his copyright on the Tyson tattoo with the US Copyright Office (allowing him to bring legal action) just weeks before the film’s release, although technically he had owned the copyright since its creation eight years earlier. An injunction would cost Warner Bros in the tens of millions since it had already launched marketing for the film, and its release had been scheduled. In a mixed decision, the court denied the injunction stopping release but allowed the copyright claim to proceed. We will never know if Whitmill would have prevailed since Warners settled with him, presumably for a decent amount. The film was released on time without a digital alteration to the tattoo, which had been one of the suggested solutions.

An interesting side issue in this case is that Whitmill’s original tattoo over Tyson’s eye was inspired by (or based on?) a traditional Māori design, yet as discussed in this scholarly paper, the cultural appropriation and Indigenous rights aspects of the case were barely touched upon in the court proceedings. Even if they had, it is unlikely to have altered the outcome.

The most recent copyright tattoo case to come into the public eye is that of Sedlik v Kat von D. In this case Kat von D, a tattoo artist was sued by prominent photographer Jeff Sedlik in 2021 for having copied his famous 1989 photograph of jazz musician Miles Davis. The person on whom the tattoo was placed is not relevant to the case; the copying of the photograph is the issue. Sedlik had licensed this photograph for various types of reproductions on multiple occasions, so there is clearly a market for the work but Kat von D did not get a licence. In response to a friend’s request, she downloaded a copy of Sedlik’s work from the internet and used a “lightbox” to trace the design on the friend’s body. Sedlik alleged copyright infringement (reproduction, distribution, display, and derivative use) while von D argued that her use was transformative and non-commercial (she did not charge for inking the tattoo).

The judge denied summary judgement and sent the case to a jury for decision, as frequently happens in the US. In January of 2024, a jury determined that Kat von D did not infringe Sedlik’s copyright, a conclusion that is hard to fathom given the obvious close similarities between the photograph and the tattoo (and considering the technique that Kat von D used, literally tracing the photographic image), the fact that Sedlik has a proven licensing market for the image (which was ignored) and that Kat von D derived significant commercial benefit from the publicity she garnered for her work even though she didn’t charge for the actual tattoo. This is yet another example of the unpredictability, indeed irrationality, of jury findings in copyright cases. The case is now under appeal on the basis that the case should have been decided by a judge, not a “poorly-instructed jury”.

For sure this won’t be the last tattoo related copyright case we will hear about, whether it is about protecting tattoo based art or ensuring that artwork used in tattoo parlours is legitimately accessed. If I were to get Mickey or Bugs tattooed on my back, would that be a problem? Possibly, depending on who I was. All this to say that it helps to have a bit of skin in the game when it comes to walking the fine line between tattoo art and copyright.

© Hugh Stephens, 2025. All Rights Reserved.