Tattoos on avatars in the metaverse: copyright and personality rights issues

One of the fundamental aspects of the metaverse regards how it provides a virtual space for users to interact with each other in a way that reflects interactions in the real world. As such, it is increasingly common to interact via virtual avatars, which in many cases depict a realistic or identical likeness of real people.

Considering the metaverse also makes it possible for users to control and use virtual items – such as vehicles, weapons, furniture or clothes – developers must respect the rights of inventors, designers and holders of distinctive signs and symbols, just as they would have to in the real world. In other words, intellectual property rights also need to be strictly observed in the metaverse.

Within this context, specific discussions have also arisen about the virtual representation of tattoos on the people represented by avatars, which may be protected by copyright.

Copyright law in Brazil

Article 5, XXVII of Brazil’s Federal Constitution specifically provides for copyrights, establishing that copyright holders have the exclusive right to use, publish or reproduce their works.

These rights are also regulated by Brazil’s Copyright Law (Law No. 9,618/1998 – LDA), which provides protection for intellectual property defined as creations of the spirit, expressed by any means or fixed in any medium, tangible or intangible, known or to be invented in the future.

Copyright protection in Brazil has a dual nature, which includes both patrimonial and moral rights, according to Article 22 of the LDA.

Patrimonial rights refer to economic exploitation and the exclusive right to use, benefit from and sell a given literary, artistic or scientific work. Meanwhile, moral rights – which, as per the LDA, are inalienable and cannot be transferred or waived – confer on authors the right to claim intellectual paternity, to be recognized as the author of the work and have their name linked to it, leave their work unpublished, maintain the integrity of the work, modify it, and withdraw their work from circulation, among others.

Tattoos in the metaverse: copyright and image rights

The LDA includes intellectual works such as drawings, paintings, engravings, sculptures, lithography and kinetic art within the scope of its protection. It is in this context that copyright issues concerning tattoos should be analyzed, as the human body can be considered a tangible support of expressing an artwork.

When analyzing copyright protection for tattoos, the concept of originality must also be taken into account. For example, it is not possible to protect a tattoo of a specific date if the artist does not make further creative additions to the tattoo. Once a tattoo is protected under copyright, the creator (the tattoo artist) has both patrimonial and moral rights over the work, including the right to decide if it is displayed in public.

However, given that a tattoo is drawn on a person’s body, it is necessary to weigh up the rights in question – the tattooed person’s right to their image and the tattoo artist’s copyright – as the tattoo’s display on the person’s body is intrinsic to its existence.

The issue of reproducing tattoos on graphic representations of athletes in online sports games has already stirred debate around the world. Not only does this debate concern whether the tattoos should be displayed as such, but also whether the respective tattoo artists should be due some form of remuneration.

When this issue is applied to the metaverse, the absence of national borders makes it a multi-jurisdictional issue. Moreover, other discussions may arise from these representations — for example, regarding who has the right to reproduce a given tattoo, or if the reproduction of a tattoo in this virtual realm displeases its creator. Therefore, before providing a solution to the market in general, it would be prudent to assess how this situation is handled in each jurisdiction.

The three-step test in the Berne Convention (to which Brazil is a signatory) can be used to evaluate the limits of reproducing tattoos in the metaverse. It determines that unauthorized use of copyrighted works must involve a special case and must not affect the copyright holder’s normal exploitation of the work nor cause unjustified harm to their interests.

It is also worth mentioning certain lawsuits that tattoo artists have filed against video game developers, claiming copyright violation due to the reproduction of their creations on characters within the games.

Cases outside Brazil

Although no cases on the subject have been decided in Brazil to date, a case in the US District Court of the Southern District of New York ruled in favor of the defendant, a video game company that developed avatars of famous basketball players — including their tattoos. In this case, the court applied the doctrine of de minimis use, viewing the use of the copyrighted tattoos as insufficient to establish a second similar work that would consist on a proper reproduction, and thus, a copyright infringement.

Furthermore, the same court also applied the doctrine of implied license, based on three premises. First, it was assumed the players represented in the video game had requested that their tattoos be reproduced on their respective avatars. Second, the artists had drawn the tattoos directly on the players’ skin, and finally, given the players were public figures, they were likely to appear in public or the media with their tattoos. The court, therefore, inferred that the tattoo artists had granted the players a non-exclusive license to use their tattoos.

With that said, this issue has the potential to be even more complex within the metaverse, as there are even virtual tattoo studios within this environment exclusively for the avatars. As such, copyright issues are becoming more nuanced, opening up opportunities for creators to present new terms in relation to the use of their works, as well as for third parties to anticipate potential issues in regard to their rights.

Looking at disputes such as the one described above, it can be understood that those involved in the metaverse are also required to strictly observe the intellectual property rules existing in the real world. Moreover, when it comes to tattoos in the metaverse, the personality rights of the person represented in the avatar and the copyright of the graphic work expressed via the tattoo must be considered and protected.

For further information on this subject, please see our special series Intellectual Property and the Metaverse.

*With the collaboration of Júlia Leite Contri and Lorena de Freitas Moraes Sampaio Pereira.