TATTOO AND COPYRIGHT LAW *Kishan Kumar, IIIrd Year, Central University of South Bihar, Bihar

Advancement in technology has led to a drastic change in human lifestyle. This has encouraged people to explore and try new things either out of necessity or as a fashion statement. The trend of having a tattoo has become a fad among youngsters and aged alike. Merriam-Webster defines a tattoo as “an indelible mark or figures fixed upon the body by insertion of pigment under the skin or by the production of scars”. [1] People these days wish to have at least one small tattoo on their body. In old times, people used tattoos to express their culture, belief, faith in a particular religion or a cause. Nowadays the trend has changed and these things have gradually become a medium of expression as per the wish of the person. Tattoo making is an art and what is drawn is also an art. The challenge is whether the tattoo maker has the prescribed permission from the real maker of the art or is he just infringing the former’s IPR? And if the tattoo maker has the IP rights of tattoo art can they sue the infringers? Who would be such in cases of infringement of the infringer of the art or person displaying such art? These questions are dealt with in this article.

Tattoo art infringement is not new in the IP world. One such case of infringement pertains to the year 2011 when a movie named “Hangover II” was released. In the movie, one of the characters wakes up with a replica of Mike Tyson’s famous tattoo on his face. [2] As the tattoo was already registered under the US copyright office and protected under copyright law, Tyson’s tattoo artist sued the filmmakers for copyright infringement (Whitmill v. Warner Bros. Entm’t, Inc).[3] Although the case didn’t reach the court as the parties settled their dispute outside the court. In fact, it was not the first time when tattoo artists claimed for such protection of their IP. In another case, an NBA player was sued by a tattoo artist for displaying his tattoo in a Nike advertisement. This case too was settled outside the court. [4]

It is pertinent to mention here that copyright protection applies to “original work” be it published or unpublished and includes writing, art, music, dramatic work and other intellectual property. These works must be in a tangible form, generated through ideas, speeches, or other work that has not been written down or recorded earlier. Tattoos can be original work and are prone to IPR infringement. In cases of infringement, the copyright holder must prove that the infringement has led to a negative impact or degradation of the commercial value of the infringed work in the market. For example, the tattoo artist who depicts the cartoon character onto their client without obtaining permission from the original creator is violating the copyright protection of that cartoon creator. While the person who has portrayed such tattoo on his/her body is considered less likely to be infringer as the display of the work is usually not-for-profit and would eventually not affect the work’s value or market.[5]

The Indian Copyright Office in 2011 has granted such protection to Sharukh Khan for his tattoo. As of now, there has been no news of copyright infringement of a tattoo in a country like India or the artists are reluctant to fight an IP battle in a country like India, with a huge number of infringers. The Copyright Office is the guardian for the protection of artworks in India. For all such protection, originality is the key ingredient without which copyright protection does not exist. Making a tattoo which is distinct involves creator effort and intellect. Hence, it must be noted that possession of such rights lies in the hand of the artist. Therefore, an artist has the exclusive rights to exploit such work until and unless he/she grants someone to license to do the same. Section 14 (c) (ii) of Copyright Act 1957 (hereinafter referred to as Act), specifies that the copyright holder has the right to communicate the piece of work to the public. In furtherance to that, 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. Hence, the situation arises that the tattoo artist controls the activities of tattoo bearer which, eventually led to the violation of tattoo bearer rights enshrined under article 19 and article 21 of the Indian Constitution. Section 17 of the Act provides a solution when interpreted further and concludes that the tattoo bearer acts as the quasi-employer to the artist and hence he is the first owner of the copyright in the absence of an earlier contract between them.[6] Additionally, most of the tattoo creators believe that once the tattoo bearer paid the amount for the said creation all the rights vest in the hands of the bearer. [7]

Apart from this, is another side for the aforementioned discussion i.e., the global recognition of tattoos and their artist.  It’s quite strange to know that many countries still prohibit tattoo creation to some extent. Countries such as South Korea, North Korea and other Korean peninsular countries still have a very stringent law with respect to the same. Only certified doctors in these countries are allowed to have tattoos on their body based on certain terms and conditions while the rest of them who carry such tattoos shall be punished as it is considered illegal in the law. Meanwhile, countries such as Thailand are famous for the tattoo industry and have favourable laws with respect to tattoo making. The only condition being that tattoo should not be of Lord Buddha.[8] In the UK, a person needs to obtain a license if he/she wishes to get a tattoo. [9]

The aforesaid discussion has thrown some lights on the copyright protection of tattoos. Prima facie it involved two parties i.e; the artist and the tattoo bearer. Generally, these rights are enjoyed by any one of them or sometimes shared among them. As of now, there has been no strong precedent that will define the limit to the extent of injunctive relief that may be sought by the copyright holders without violating the infringer’s fundamental rights. But it’s high time for us to understand the legal protection for tattoo bearers and tattoo creators. Just like the painters get protection for their painting or artists to get protection for their art through different legal provisions enshrined under copyright and related laws in a country, in the same way, copyright protection should be available for the tattoo makers and tattoo bearers alike.

References:

1. Are tattoo protected by copyright?https://copyrightalliance.org/ca_faq_post/tattoos-copyright/.

2.Katie Scholz, Copyright and Tattoos: Who Owns your Ink?, (July 26, 2018), https://www.ipwatchdog.com/2018/07/26/copyright-tattoos-who-owns-your-ink/id=99500/.

3. Kiran George, The Copyrightability of Tattoos (I): Does Artist Interest trump the Right to Bodily Autonomy? (Aug 28, 2016), https://spicyip.com/2016/08/the-copyrightability-of-tattoos-i-does-artist-interest-trump-the-right-to-bodily-autonomy.html

4. Amlan Mohanty, Tattoos: Can We Copyright That Too? (Jun 22, 2011), https://spicyip.com/2011/06/tattoos-can-we-copyright-that-too.html

5. Molley Sawyer, Do tattoo Infringe on Copyrights, (2012), https://smallbusiness.chron.com/tattoos-infringe-copyrights-48743.html.

6. Amruta Mahuli, Tattoo as Intellectual Property- an Indian Perspective, (sep.04, 2017) https://www.mondaq.com/india/trademark/625750/tattoos-as-intellectual-property-an-indian-perspective

7. Rebecca Schafer, Tattoo Laws around the world (Dec 5, 2017), https://medium.com/@rebeccaschfer/tattoo-laws-around-the-world-18ca85c69a21#:~:text=South%20Korea%20is%20not%20the,side%20of%20the%20Korean%20Peninsula.&text=Thailand%20on%20the%20other%20hand,is%20part%20of%20Thai%20tradition.

8. Sri Lanka to deport Buddha tattoo British woman (Apr 22, 2014) https://www.bbc.com/news/world-asia-27107857

9. TATTOO LAWS AROUND THE WORLD – AVOID GETTING SENTENCED ABROAD (Mar 03, 2016) https://www.barberdts.com/se/blog/2016/10/03/tattoo-studios-around-world/

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