COPYRIGHT AND TATTOOS: THE INKY BATTLE FOR RIGHTS OF TATTOO ARTISTS
The question with regard to copyrightability of tattoos was raised and brought to world’s attention when Victor Whitmill, a tattoo artist was sued Warner Bros for an imitative tattoo of an actor in the movie Hangover-2 which was exact replica of his own tattoo.[i] This incident raised several raging issues including the fixation, ownership and fair use of such tattoos. It is quite thought-provoking whether tattoos by tattoo artists are copyrightable at all. This article critically examines the position of tattoos as an element of intellectual property especially copyright, rights of tattoo artists and scrutinizes tattoos in context with publicity rights.
THE INKY AMBIGUITY: CAN TATTOOS BE COPYRIGHTED?
The Berne Convention states that any ‘literary’ or ‘artistic’ work can be protected under copyright if there is an originality of thought and fixation of expression. As per Title 17 of United States Code, ‘fixation of a tangible medium of expression’ can be described as an embodiment of work which is permanent or stable and can be perceived, produced or communicated for a period more than the transitory duration.[ii] In India, tattoos satisfy the statutory conditions for their copyrightability. As per section 13(1)(a) of the Copyright Act, 1957, any ‘artistic work’ which has an originality must be protected.[iii]
However, United States’ Copyright Law specifically mentions that there shall be no precondition for fixation in a useful article as long as it depicts an originality of thought. It can be presumed the tangible medium of expression in case of ‘human flesh or skin’ can be perceived as stable or permanent as it can be communicated for a period more than the transitory period.[iv] As per the recent case of infamous Mike Tyson’s tattoo, Judge Perry stated that ‘the tattoo and the design can out rightly be copyrighted as they are entirely consistent with the copyright statute’.[v]
However, this is not the first time when a tattoo designer has fought this inky battle. In 2005, a tattoo artist sued Wallace for displaying his work in ads for Nike basketball shoes as well as for the damages. The tattoo artist, Matthew Reed owned a copyright over his design and researched on the idea to come up with a design for which he charged mere $450.[vi] There has not been a clear judicial pronouncement backing the rights of tattoo artists as a copyright commentator, Mr. Nimmer believed that ‘tattoo is a mere human flesh and cannot be granted protection’.[vii]
FIRST OWNER OF THE COPYRIGHT: WHO OWNS THE INK?
A subsequent issue which was raised was that whether tattoo artist would be owner of copyright or a mere worker hired for service. As per Section 17 of the Copyright Act, 1957, any engraving made at the instance of a person shall commute as the ‘first owner of the copyright’. In other words, the person on whom such engraving has been made shall be deemed as the rightful first owner of the copyright.[viii] However, one must dig deep and understand that such engraving or design cannot be possessed by the tattoo artist who is the original worker of the copyright.
PUBLICITY RIGHTS: INKING YOUR SOUL
The publicity rights are widely acknowledged in the field of Intellectual Property as a right which protects a ‘renowned person’ against any misuse or misappropriation of name, likeness or other such conflict with their own personal identity. The personality rights are elucidated as broad and bundle of rights vested upon an individual’s persona which is recognized on the basis of their public image, likeness, name, skills, traits, character and fan-following.[ix]
In India, publicity rights have been revolving within several rights which indirectly linked. Several courts have recognized the essence of publicity rights in this sphere. The Madras Court relied upon the decisions of Delhi High Court and held that when the name of a renowned Indian celebrity ‘Rajnikant’ is used in an unauthorized manner, it would result in violation of the publicity rights of his persona and identity.[x] Subsequently, the landmark judgment[xi] passed by Supreme Court of India deeply scrutinized the term ‘right to privacy’ in a broader dimension. Justice Kaul stated in the judgment that every individual has a right to exercise a control over his image and persona in an authorized manner. In the light of above mentioned, it was stated that ‘right to publicity’ is an autonomous right regulating as per the personal interest and prevents outsiders from inferring its meaning and value.
The real issue with regard to publicity rights and copyrights in the current scenario is that what would happen when a tattoo artist sues a celebrity for infringing his rights over a tattoo. Indian Courts are yet to witness such disputes as ‘tattoo industry’ is India is still blooming.[xii] In United States, cases like Reed v. Nike[xiii] have been established amid such circumstances. However, Indian scenario is quite complicated as tattoo artists if given rights will be granted joint rights with the tattoo owners. As per Section 14(c) of the Copyright Act, 1957, if artistic work so granted copyright is original, the owner shall be granted right to issue copies, reproduce, make adaptations or communicate the work to public.[xiv] If the tattoo artist attempts to exercise such rights by reproducing his work, it shall infringe the publicity rights of the individual. Even if the tattoo artist has rights over his work, the other person logically enjoys publicity rights over the tattoo which has made the design so popular at first place. Then, it would imply that celebrity or that renowned person is paying royalties over his own popularity.
MORAL RIGHTS OF TATTOO ARTIST
Likewise, the author or an artist also enjoys moral rights apart from economic rights which have been enshrined under Section 57 of the Copyright Act, 1957. As per the section, the ‘right of integrity’ is among an essential right available to the artist. The author any art work can sue against modification, distortion or mutilation in relation to the work which shall be prejudicial to their own reputation, goodwill or honor.[xv]
In Raj Rewal v. Union of India,[xvi] the court witnessed a conflict between moral rights and constitutional rights. In the present case, an architect was petitioned for the demolition of a building he designed and claiming this as prejudicial to his own goodwill. However, court rejected the argument stating ‘what cannot be seen, cannot hamper the author’s reputation’. This case declared that even section 57 of the Copyright Act cannot prevent the tattoo bearer from modification, removal or conciliation of his tattoo.
WHEN THE INK DRIES: THE ROAD AHEAD
Sadly, there is no direct law or legal precedent guiding the issue for copyrightability of tattoos. One such suggested ways of tacking such conflict can be to treat tattoos as a work consumed as a service as stated under Section 17 of the Copyright Act.[xvii] However, this way the economic rights of the tattoo shall belong to the tattoo holder or bearer. This is a big dilemma and very difficult proposition to decide since several tattoo artists work as a freelancer and not employees of the tattoo bearer. Such independent contractors need a security for their work as several celebrities regularly get inked via such waivers or assignments. Another suggested way can be issuing an implied license which was recognized in the case of Solid Oaks v. 2k Games.[xviii] Such implied license shall act as a non-exclusive license provided by the tattoo bearer. Nonetheless, publicity rights would create a constrain in such cases as the rights are not well established in India. With the emergence of different forms of art and designs in an unimagined medium, such issues make us realize the importance copyright law holds. It is essential for legislature to lay down defined set of laws for publicity rights to clear the ambiguity. To create a harmony and balance in society, it is necessary that law benefits the ‘tattoo artist’ and ‘tattoo bearer’ equally.
[i] Katie Scholz, Copyright and Tattoos: Who owns your ink, IP Watch Dog (13 Aug 2020, 3:03 PM) https://www.ipwatchdog.com/2018/07/26/copyright-tattoos-who-owns-your-ink/id=99500/. [ii] Title 17, United States Code, Copyrights, 1947 (United States). [iii] Section 13(1)(a), The Copyright Act, 1957, No. 14, Acts of Parliament, 1957 (India). [iv] Devika Agarwal, Rights of Tattoo Artists, De-Coding Indian Intellectual Property Law, IP Spicy (14 Aug 2020, 6:36 PM) https://spicyip.com/2014/06/rights-of-tattoo-artists.html. [v] Amlan Mohanty, Tattoos: Can we copyright that too?, De-Coding Indian Intellectual Property Law, IP Spicy (13 Aug 2020, 5:35 PM) https://spicyip.com/2011/06/tattoos-can-we-copyright-that-too.html. [vi] ESPN, Artist sues Wallace over use of tattoo dated on 17 February 2005. [vii] Lauren Etter, Tattoo Artists are asserting their copyright claims, ABA Journal (14 Aug 2020, 4:34 PM) https://www.abajournal.com/magazine/article/tattoo_artists_are_asserting_their_copyright_claims. [viii] Section 17, The Copyright Act, 1957, No. 14, Acts of Parliament, 1957 (India). [ix] Awasthy Sujth, Sports and IPR – An overview of the Indian Standards, Open Access Journal, The Law Bridge (Jun. 4, 2020, 7:56 PM) http://thelawbrigade.com/wp-content/uploads/2019/05/Aswathy.pdf. [x] Shivaji Rao Gaikawad v. Varsha Productions, SCC Del. 2382 (2012). [xi] Justice K.S. Puttuswamy (Retd.) v. Union of India, 10 SCC 1 (2017). [xii] Adyasha Samal, Tattoos: The Tussle between copyright and publicity rights, IP Rights (14 Aug 2020, 8:04 PM) https://spicyip.com/2020/07/tattoos-tussle-between-copyright-and-publicity-rights.html. [xiii] Reed v. Nike, Inc. et al 17 Civ. 7575 (LGS). [xiv] Section 14(c), The Copyright Act, 1957, No. 14, Acts of Parliament, 1957 (India). [xv] Section 57, The Copyright Act, 1957, No. 14, Acts of Parliament, 1957 (India). [xvi] Raj Reval v. Union of India, CS (COMM) 3/2018, IA No. 90/2018. [xvii] Section 17, The Copyright Act, 1957, No. 14, Acts of Parliament, 1957 (India). [xviii] Solid Oak Sketchers, LLC v. 2 K Games, Inc., 16-CV-724-LTS-SDA (2020).
The author of this post is Aarushi Relan (a recent law graduate from Amity Law School, Noida)
The views expressed in this article belong to the author/s and do not necessarily reflect those of the JCLJ Blog. We welcome comments and contributions to this blog – please comment below.