Author 1: Harshita Parihar
Author 2: Amisha Tripathi
3rd Year B.A. LL.B (Hons.)
5th Year B.B.A. LL.B (Hons.)
Maharashtra National Law University, Aurangabad
Indraprasth University, Delhi
More often than not, before getting a tattoo, people fail to consider if getting a tattoo on your body is going to invite some sort of legal action against them. According to Merriam Webster Tattoos is defined as an indelible word, figure, design or mark created by insertion of pigment under the skin or a design, mark, figure and work placed on the skin, either temporary or permanent Which raises the question – shouldn’t a tattoo classify as a painting or a work of art? This article looks into the legal position of a tattoo as an artistic work under copyright laws with the help of comparative legal framework in India, the United Kingdom and the United States.
2. TATTOOS AS ‘ARTISTIC WORKS’?
Section 2(c) of the Copyright Act, 1957 defines an artistic work as (i) a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality; (ii) a [work of architecture]; and (iii) any other work of artistic craftsmanship. The person who creates the tattoo is known as a tattoo artist. Thus, it is argued that tattoos are a work of artistic craftsmanship as they require skill, creativity, and effort to design it and engrave it onto someone’s skin Tattoos, in the form of paintings and drawings done by tattoo artists are the original work of the artist fulfilling the criteria of copyrightable works. The Indian Copyright Act 1957 and the WIPO Copyright Treaty do not talk about excluding tattoos from the Copyright Act. Considering Tattoos as an Artistic work, the King of Bollywood registered Tattoo of the letter “D” from his movie Don 2.
3. INTERNATIONAL POSITION
In the United Kingdom, as in many other European countries and the United States, copyright protection for literary, dramatic, musical or artistic works extends to a maximum of 70 years from the death of the author. In the United States, the famous case of Whitmill vs. Warner Brothers, a tattoo Artist was denied the injunction. The tattoo in question was a copy of Whitmill’s original piece for Tyson. Neither Whitmill nor Tyson approved the usage of the said tattoo in the movie “Hangover II” and particularly “Hangover. The tattoo was seen in the majority of the film scenes all over the face of one character. Whitmill was not aware of tattoo usage until hangover II whereas, in promoting the film & scheduled opening millions were spent by Warner brother. However, the case was settled but the judge thought it was a good chance for the tattoo artist to win on a copyright infringement claim. When an artist makes & sells its painting, a person gets the right to art which does not include the right to commercialise and portray in some movies. Similarly, when the Tattoo artist has inserted design, word etc on the skin of a person there is no issue. The complication starts when tattoos are used commercially. Using the design or word of Tattoo on clothing, stationery etc is copyright infringement. According to 17U.S.C.§102 copyright protection exists in “ original works of authorship fixed in any tangible medium of expression…from which they can be perceived, reproduced or otherwise communicated” and tattoos do seem to pass these two standards as they can be exposed on the skin and reproduced in photographs. On the other hand, tattoos also meet the “fixed in any tangible medium of expression” standard. This seems to be a place for each tattoo as whether it is an original work of authorship. The recent decision of the Southern District of New York, Solid oak Sketches, L.L.C. v. 2k Games, Inc. Take-Two Interactive Software, Inc, has dealt with various fascinating issues such as “Is an individual a “joint author” of his tattoos” “was there any implied license to use the tattoos”. Gradually this case started gaining sensation because of its NBA2k basketball video game series. It is one of the most successful video games on the market. The games show a lifelike image of all the NBA players and this game includes their tattoos as well. Take two had acquired the rights to use NBA Players, names, likeness from NBA for consideration of USD 1.1 billion. Solid Oak agreed with those three NBA players who had inked the tattoos on their body and Solid Oak claimed that Take-Two had infringed their copyrights by displaying their works of art or tattoos in this specific video game. The court had three grounds for the judgment. De minims use – that the tattoos are also only used on 3 players out of 400 and are not visible specifically due to the quick movement of the players. Implied License – The Court observed that players had the implied license to use their likeness because the artists knew that players would be appearing publicly and distributing their likenesses through different media. Therefore, players allowed NBA and Take-Two to use their likeness, including their tattoos, through both direct and indirect licenses.
Fair Use – The Court agreed that Take-Two fulfils all statutory use factors. The Court also opined that the character of use was transformative, its use was different from the mere depiction of art on the skin, but instead to depict the likeness of players accurately.
It is pertinent to notice that giving tattoos full protection under copyright can have several dire consequences. First, of which can be the control of tattoo artists over their clients during a situation where the artist is the sole author of the tattoo, he would be vested with “the exclusive rights to try to and to authorize” under §106. This provision, especially within the matter of tattoos, raises public policy concerns because it could allow the artist to regulate his or her artwork, which can include the person on whom it’s “fixed.” for instance, in Whitmill’s case, if the tattoo artist is granted the only right to “reproduce”, “prepare derivative works”, “distribute copies” and “display publicly” the tattoo, then professional boxer Tyson won’t be ready to appear publicly without covering half his face. And if Tyson doesn’t cooperate with the artist, he might be susceptible to pay monetary damages to the artist. For an individual like him whose significant income springs from public appearances, forcing him to forgo such appearances could impact his earnings. Secondly, there’s a conflict between the artist’s moral rights and therefore the client’s autonomy. The Visual Artists Rights Act protects the moral rights of the author. It grants the proper right to “prevent any intentional distortion, mutilation, or other modification of that employment which might be prejudicial to the author’s honour or reputation.” If this protection is granted to a tattoo artist, then the client won’t have the autonomy to change, modify, or destroy the tattoo without the artist’s permission. These VARA provisions can potentially impact numerous human rights of the client and can even be in direct violation of the Thirteenth Amendment’s Freedom of individual and autonomy. In the UK every 5 out of 4 people have Tattoos embarked on their skin. Disputes related to ownership of Tattoo design are likely to increase day by day. Every Tattoo is unique and copyright belongs to the Tattoo Artist. It’s simply who designs the Tattoo owns the copyright over it. Copyright law gives protection to the person who has created something or has designed it. Mo Coppoletta who is founder of Family Business of Tattoo enjoying a reputation of unique design & quality work says “The world of tattooing is so influenced by itself that you don’t even know who the originator is.”
There aren’t many cases that have happened questioning the copyrightability of tattoos, but in 2011, the Indian Copyright Office approved of a copyright over a tattoo that was engraved on Bollywood actor, Shah Rukh Khan. The tattoo comprises a singular letter ‘D’ that’s tattooed on his arm for the movie ‘Don 2’, in which he played the lead role. The tattoo has been registered under Shah Rukh Khan’s name and has been copyrighted. Section 14(c) (ii) specifies that the copyright holder has the right to communicate the piece of labour to the general public. It must be noted that this provision concerning the communication of the artistic work to the general 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 limit the replications of the artistic add the other medium under Section 14. Thus, one may imagine the way during which a copyright holder, during this case the tattoo artist may incorporate the above-mentioned right, considering that the ‘work of art’ which is to be communicated to the general public is really on somebody else’s body unless the tattoo artist has tattooed himself. In other words, it’s going to mean that the tattoo artist has the proper right to regulate 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 mention the smallest amount. Another argument within the favour of the tattoo bearers holding the authorship rights is that the tattoo artist may be a hired employee, during which case, S.17(c) of the Indian Copyright Act, 1957 could also be interpreted because the tattoo bearer being a quasi-employer of the tattoo artist, is that the first owner of the copyright, within the absence of a contract between the two. In practice, most tattoo artists, too, believe that when the customer pays for the tattoo, he owns the tattoo and all the rights that accompany it.
The Copyright Act, 1957 is comprehensive in nature which safeguards the interest of Tattoo Artists. After paying & getting a Tattoo don’t assume it’s all yours, the ownership still belongs to the artist who has expressed it on your skin. The Tattoo Artist has the right to his work. But on the contrary Tattoo Artist embarking design or word on someone’s skin implies giving that person a broad license to appear in public or appear on television, YouTube or simply live a normal life.
 Whitmill vs. Warner Brothers.