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  • Namrata Pahwa

INTELLECTUAL PROPERTY & TATTOOS

Tattoos have a long historical background. It was first discovered in Ancient Egypt which had been documented as long as 6000 years back. In USA tattoos were prohibited in all states till 2004. Tattoo same as painting, is a result of human activity and should be protected as an Intellectual Property. Hence, as an artistic work it is protected under Section 14 of Indian Copyright Act, 1957 in India.


Unlike in United States where the statute requires the "pictorial, graphic and sculptural" copyrightable work to be "original works of authorship fixed on a tangible medium of expression", Indian law does not explicitly specify any need for tangible medium of expression. However, owing to the permanent nature of the tattoos and the human body being the "tangible medium of expression", the reservations against tattoo not being copyrightable work, by definition, should be ruled out.


Many believe that this “growing body of case law suggests that ultimately it’s the tattoo artist—not the person who bears the tattoo—who owns the rights to that tattoo.” This common proposition that the tattoo artist is the copyright owner is supported by 17 U.S.C. § 201, which states that a copyright-protected work is initially owned by the author of the work. Exceptions to this default rule exist when there is an agreement specifying otherwise or when the work is classified as a “work made for hire.”


Solid Oak Sketches alleged it owned the copyrights to tattoos featured on numerous icons in the NBA, including tattoos on Kobe Bryant and LeBron James. Consequently, they sought $1.1 million for an unauthorized reproduction of the copyrighted tattoos. When purported copyright owners of tattoos file lawsuits, the issues that must be addressed are whether tattoos are copyrightable and if so, who owns the copyright of the tattoos. Because all previous cases filed by tattoo artists who alleged copyright infringement settled before going to trial, there is a lack of case law on which potential plaintiffs can rely. Implied License may be found "where one party created a work at the other's request and handed it over, intending that the other copy and distribute it." And in this case, undisputed declarations submitted by the Artists stated that the Tattoos were created at the Players' request and were "delivered" through the inscription of the Tattoos on the Players. Id. In addition, the Artists intended that the Tattoos would be copied and distributed by the Players as elements of their likenesses and knew that the Players were likely to appear "in public, on television, in commercials, or in other forms of media.


There are two different categories of tattoos that are the focus of this article. The first is ‘contemporaneously-placed tattoos,’ which are tattoos that are simultaneously designed and applied on a person’s body without a preliminary stencil, sketch, or drawing. The tattooist creates a picture without guidance from a premade outline. The other is ‘preliminarily-sketched tattoos,’ which are previously created stencils or drawings that are later tattooed on a person’s skin. The stencil or drawing is then placed on the patron’s arm as a reference when the tattooist begins to place ink on the skin. The difference between the two methods is that contemporaneously placed tattoos require no preparation on behalf of the tattooist because the tattooist designs the tattoo as they go along, and preliminary sketch requires preparatory work on behalf of the tattooist.


COPYRIGHTABILITY OF TATTOOS IN INDIA


Tattoos are pieces of art and hence are copyrightable in nature. The tattoo artist, as the copyright owner, transfers the so-called 'implied license' to the person carrying on his body the artistic work. This license enables the tattooed individual to use the copyrighted material of the artists. Besides this, the copyright law cannot fully determine whether or someone can get their arm out in public or not.


Among the various other rights of the copyright holder mentioned in the Indian Copyright Act, 1957, Section 14(c) (ii) specifies that the copyright holder has the right to communicate the piece of work to the public. It must be noted that this provision relating to the communication of the artistic work to the public speaks of ‘artistic work’ only implying that tattoo artist is entitled rights only of the “artistic work” i.e. the tattoo bearer’s body that has been imprinted with the tattoo while allowing the artist to restrict the replications of the artistic work in any other medium under Section 14. Thus, one may imagine the way in which a copyright holder, in this case the tattoo artist may incorporate the above mentioned right, considering that the ‘work of art’ which is to be communicated to the public is actually on somebody else’s body, unless the tattoo artist has tattooed himself. In other words, it may mean that the tattoo artist has the right to control and regulate the tattoo bearer’s activities which, by all means, violates the very right to freedoms promised to us by Art.19 and Art.21 of the Indian Constitution, to say the least. Another argument in the favour of the tattoo bearers holding the authorship rights is that the tattoo artist is a hired employee, in which case, S.17(c) of the Indian Copyright Act, 1957 may be interpreted as the tattoo bearer being a quasi-employer of the tattoo artist, is the first owner of the copyright, in the absence of a contract between the two. In practice, most tattoo artists, too, believe that once the customer pays for the tattoo, he owns the tattoo and all the rights that come with it. There is nothing in the Indian Copyright Act, 1957, which precludes the registration of tattoos or states that tattoos are not copyrightable. Nonetheless, according copyright protection to a tattoo means that the provisions of the statute would apply to it, and in some respects, it is extremely difficult to understand how it would be possible to apply the Act at all. In India, Shah Rukh Khan had taken steps which have caused him to become the first celebrity to register a tattoo in his name: the tattoo he sports in the film ‘Don 2’. The actor has obtained a copyright registration


Sole authorship is when one person independently created a work. Copyright protection is only extended to ‘works that are representatives of the original intellectual conceptions of the author.’ When a work is developed from the “original intellectual conceptions” of one person, that individual is the sole author no matter how many individuals were involved to create the work. Joint authorship is when “two or more authors with the intention that their contributions merged into inseparable or interdependent parts of a unitary whole.” The key component in figuring out whether a work is one of joint ownership is the intent behind the authors. If two parties do not have the intention that their contributions are to become an indivisible whole, there is no joint authorship in the work, and no joint ownership in the copy- right. There are lower chances that a tattoo would be of joint authorship because most clients rely on a tattoo artist to independently create a unique tattoo for the client.


The most straightforward case would be one in which the tattoo or makeup artist is a sole proprietor who uses a human "canvas" to create a work of her own choosing. In such a case, the body artist would be analogous to a portrait painter or photographer. A work of body art could be a work for hire for several reasons like commissioned work.


What this means is that should persons getting tattoos be asked to sign waivers, in the manner in which hospital patients are asked to, and should those waivers include assignments of copyright, or acknowledgements that the copyright belongs to the tattoo artist, the result could well be that a person getting a tattoo would wind up sporting intellectual property belonging to someone else. Another possible situation is where a person desiring a tattoo chose one from the tattoo-artist’s oeuvre. In such a case, the copyright in the artwork of the tattoo could belong to the artist even without a waiver/assignment signed by the person on whom the tattoo were drawn. This is because the artist would probably own the copyright in his own oeuvre, and the tattoo itself could be treated as a derivative work which the tattooed person merely had a licence to sport.


Independent of copyright, the author-artist of the tattoo would have the right to integrity in respect of his work. Section 57 of the Copyright Act defines this as the right “to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the said work which is done before the expiration of the term of copyright if such distortion, mutilation, modification or other act would be prejudicial to his honour or reputation.” Whether or not the removal of a tattoo would qualify as the violation of an author’s right to integrity has never been tested in an Indian court.


We’ll look into the different claims of infringement in the next part of this Article!

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