Globalisation has amplified how different cultures monetise art forms, reshaping how traditional practices are perceived and pursued locally. In Kenya, this has helped transform long-standing cultural expressions like dance and tattooing from purely spiritual or communal acts into recognised career paths. Many young people now see these creative hustles as a source of income. But did you know copyright could make you more than just a paid artiste? It could make you a right-holder. Let’s chat!
Tattoos: More Than Just Skin Deep
Tattoos are eligible for protection under the Copyright Act of Kenya as artistic works similar to paintings, murals, and drawings. [1]
Who owns the Copyright?
Like other forms of copyright, the ownership of the tattoo changes depending on the context within which it was created. Where the tattoo is created by an artiste is employed in a tattoo shop, the tattoo shop shall be deemed as the copyright owner. In an instance where a tattoo artiste or a shop is commissioned to design a tattoo, the copyright in the tattoo shall rest with the person who commissioned it. If the tattoo artiste (tattooist) creates a tattoo design, then they would own the copyright in that tattoo. If the tattoo wearer makes creative input in the tattoo design, then the tattoo shall be jointly owned.
Eligibility for Protection Regardless of the context, copyright will only protect the tattoo if it is original and has material form. In Kenya, originality means the tattoo design must emanate from your own intellectual efforts, not only demonstrating skill and effort but also have a modicum of creativity.[2]
Practical Considerations
As the copyright owner, you have the discretion to decide who uses the tattoo design, when, how, and how long they use it. However, once transmuted from a sketch and etched onto human skin, questions arise about the tattooed person’s right to privacy and right to publicity. [3] Unlike paintings, where the painter acquires ownership of the canvas used alongside the artwork, the skin belongs to the tattoo wearer. While the copyright in the tattoo design does indeed remain with the artiste, the wearer obtains an implied license to display the tattoo to the public, including being photographed.[4]
On the right to publicity (also known as Image Rights), US Courts are divided. On the one hand, the Court in the Solid Oak Case held that the tattooist, having been aware of the infamy of the basketball players, intended for them to copy and distribute the tattoos as an element of their likeness. [5]
On the other hand, the Court in Alexander v. Take-Two Interactive entered summary judgement on behalf of the Plaintiff on the basis that “it was unclear whether the tattoo artiste and the recipient had ever discussed permissible forms of copying and distributing the tattoos, and whether an implied license would include sublicensing rights.” [6]
The right to privacy is likely to arise when the tattoo artiste uses a photo of the tattoo on the body of the recipient without their consent. A Belgian Court in 2013 distinguished between the tattoo design and the tattoo itself, reasoning that once the tattoo is incorporated onto the skin of a person, it becomes part of the tattoo wearer’s persona/image.[7] This means that the tattoo wearer’s right to privacy and image rights supersedes the tattoo artiste’s copyright.
Kenya’s Courts haven’t tackled tattoos yet, but they have ruled on the right to privacy. In 2022, the High Court of Kenya found that a local university had violated a former student’s right to privacy when it used her photo to market and advertise its course offerings without her consent.[8] So imagine the debate if it was her tattoo instead or a photo of it.
Dance Choreography
Dance choreographies can be protected by copyright. In the US and the EU, dance choreography is protected as a distinct work eligible under copyright known as ‘choreographic works’.[9] In the UK and commonwealth jurisdictions like Kenya, they are eligible for protection as dramatic works. [10] Awesome right!? Not really. In order to meet the threshold for protection as a dramatic work, your choreography needs to:
- tell a story,
- develop a character or express a theme or emotion by means of specific dance movements and physical actions.
This approach is a bit unrealistic and narrow, as it would be nearly impossible for you to obtain copyright for dance choreography that does not form part of a play or musical.
Is protecting dance choreography as distinct copyright work any easier? One would think, but no. According to the US Copyright Office, choreographic works are a subset of dance, which limits what dances may be copyrighted. Single dance steps, short dance routines, fitness choreography(yoga), and social dances are not eligible for protection as choreographic works.[11]
Usually, compilations of elements that would not be eligible for copyright can be copyrighted so long as the author’s curation or arrangement of these elements shows a minimal level of creativity. An example of this would be how copyright protects unoriginal databases.[12] This principle, however does not seem to apply to choreographic works, evident in the US Copyright Office’s decision to reject a dance called the five-petal flower on the basis that it was too simplistic, being composed of mainly common place gestures.[13] Choreographic works seem to be held to a higher standard of originality compared to other works of copyright.
For the EU, choreographic works must meet the originality test that requires the work to reflect the author’s personality and be the author’s own intellectual creation. The application of this threshold will vary from one jurisdiction to another.[14] For example, the Spanish Supreme Court in 2014 heard an appeal against the refusal by the Spanish Copyright Office to register a bullfight as a choreographic work. The Court reasoned that ‘while bullfights did contain creative sequences of moves that reflect the author ‘s intellectual creations, the moves were not identifiable with sufficient precision and objectivity in order to be reproduced.[15]
Final Thoughts: IP Isn’t Just for Suits
So, next time you’re admiring a tattoo sleeve or perfecting your TikTok dance, remember—there might be more at stake than likes and follows. Intellectual property law isn’t just for big inventions or corporate logos; it can apply to the art we wear and the moves we share. Tattoos, choreography, even a catchy dance routine—all these creative expressions could be eligible for protection if you meet the right conditions.
Of course, the law hasn’t quite caught up with all the ways we create and express ourselves today, and occasionally, the rules can feel a little outdated (sorry yoga influencers, your flow might not qualify—yet). But knowing what’s possible is the first step in protecting your work and claiming your space as a right-holder, not just a content creator.
[1] See section 2 of the Copyright Act of Kenya, Cap 130.
[2] See J. W. Seagon & Co. Insurance Brokers (Kenya) Ltd. v Liaison Group (I.B) Limited & 2 others [2021] eKLR, paras 45 –58.
[3] Hobss and Coghill, Legal Ink: An Overview of Copyright Law and Tattoos, Journal of Intellectual Property Law and Practice,2021, Vol.16, No.12
[4] Timothy C. Bradley, 2012, The Copyright Implications of Tattoos, ABA Journal accessed via https://www.jstor.org/stable/23630784
[5] Oliveras Maldonaldo, G. J. (2021). Who owns tattoo? lesson from solid oak sketches, llc v. 2k games, inc. and take-two interactive software, inc. Revista Juridica Universidad de Puerto Rico, 90(3), 721-750.
[6] See: https://bpb-us-e2.wpmucdn.com/sites.uci.edu/dist/d/2220/files/2021/04/Alexander-v.-Take-Two-Interactive-Software_-Inc._-2020-U.S.-Dist.-LEXIS-177130.pdf
[7] De Mucci, Nicoletta and Fritsch, Simon, Tattoos, Tattooists, (Famous) Tattooed Persons & Copyright from a European Law Perspective (2020). WIPO Academy, University of Turin and ITC-ILO – Master of Laws in IP – Research Papers Collection – 2019-2020, E. Rosati, More on copyright in tattoos: a Belgian precedent, 2013, https://ipkitten.blogspot.com/2013/08/more-on-copyright-in-tattoos-belgian.html.
[8] See: Wanjiru v Machakos University (Petition E021 of 2021) [2022] KEHC 10599 (KLR) (3 August 2022) (Judgment)
[9] Pérez Acevedo, N. 2025. Protection of Choreographic Works: A Comparative Approach. Revista La Propiedad Inmaterial. 39 (feb. 2025), 43–80. DOI: https://doi.org/10.18601/16571959.n39.02..
[10] Kenya Copyright Board, 2023, Copyright for Dance Choreography https://copyright.go.ke/media-center/blog/copyright-dance-choreography
[11]Ivana Ružičić, 2025, Copyright Protection of Choreography: Legal Framework for Creative Expression
[12] See Section 2 of the Copyright Act of Kenya.
[13] Harvard Law Review, Dancing on their Own: Alternatives to Copyright for the Choreographic Community, Volume 138 Issue 5 March 2025 accessed via https://harvardlawreview.org/print/vol-138/dancing-on-their-own-alternatives-to-copyright-for-the-choreographic-community/
[14] Supra Note 9.
[15] Ibid.