This article is written by Utsav Sharma who is pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho.

Introduction

Tattooing has been practised across the globe since Neolithic times which has been evidenced by mummified preserved skin, archaeological records as well as from ancient art. If we look at the history of tattooing in India, the permanent tattoos were very common in South India, especially in Tamil Nadu before 1980. Permanent tattoos in that part of the country were referred to as pachabottu or pachakuthu. In Northern India, permanent tattoos are called godna. Tattoos in India have been used as cultural symbols among the vast tribal population as well as the general Hindu population of India. Today, many young Indians are embracing religious and spiritual tattoos. Tattooing is being recognised as an art form in which trends such as nature-inspired designs, realistic portraiture etc. are gaining traction. 

Being an IP enthusiast, my interest lies in looking at the tattoos from the copyright perspective. The first question that comes to my mind is- Can the tattoos be copyrighted? If yes, then who owns the copyright to that artwork?

These are the several questions I have tried to answer through this blog. So, let’s begin!!

Can Tattoos be copyrighted?

The first enquiry that is required to be made is whether tattoos qualify as artistic work under the Copyright Act, 1957 (“Act”). Artistic work is defined under Section 2(c) of the Act which states that a painting, a sculpture, a drawing, an engraving or photographs do qualify as artistic work. Tattoos which are engraving on human skin (‘fixed tangible medium’) does satisfy a statutory requirement of being an artist work under the Act. Thus, according to Section 13(1) of the Act, any artistic work can very well be copyright protected in India.

 Do you know that the letter ‘D’ in the name of Shahrukh Khan, for his film Don 2 was granted copyright by the Registrar of Copyright in 2011. Thus, any tattoo design can very well be protected by copyright, provided it shows sufficient originality and is fixed on a tangible medium.

Who owns the copyright to that tattoo?

When it comes to the question of ownership, Section 17 of the Act states that the owner of the copyright shall be the author of the work. So, in most circumstances, tattoo artist shall be the owner of the copyright. Yes, even though the tattoo is on your skin but the owner of that is still tattoo artist who made it. 

Though India lacks the cases of disputes which are related to the copyright infringement of tattoos. But an interesting dispute took place in the US, in the case of S. Victor Whitmill v. Warner Bros’ where Warner Bros were sued by a tattoo artist from Missouri for unauthorized use of Mike Tyson’s tattoo in the movie Hangover II. Tyson’s tattoo artist is a registered design with the USPTO. From the hearing before the judge, it can very well be stated that the judge believed that tattoos could very well be copyrighted. Warner Bros. were also claiming the use of tattoo as a parody but the Court was of the view that tattoo depicted exact replica and thus cannot be just called a parody as it appeared or featured in a comic film. Though the case was finally settled out of court without any definitive judgement.

Another issue that came up in April 2018, concerning tattoos on WWE wrestler Randy Ortan drawn by a tattoo artist, which appeared in WWE 2016, 2017 and 2018 video games. The tattoo artist alleged commercial use of her tattoo design without her prior consent. Now on 7th October 2020, the federal judge of Illinois has decided that the jury shall decide whether or not a video game publisher’s realistic depiction infringes the tattoo artist’s copyright in Orton’s tattoos. So, the jury’s decision is still awaited in this case.

How can tattoo bearer become the owner of the copyright in a tattoo?

Since the tattoo artist is the owner of the copyright that subsists in that tattoo. The person or tattoo bearer on whose body the tattoo is drawn can also become the owner of the copyright in that tattoo by several means such as:

1. Tattoo Artist Independent Contractor Agreement: It is a contract between the tattoo artist and client where the tattooist agrees to provide their services as an independent contractor. This contract covers aspects such as the description of the services that will be provided, expenses that will be covered by the parties and most important it cover who will own the intellectual property with respect to that artistic work. Agreements contain a proprietary information clause which states who will own the “work product” such as notes, drawing, models, moral rights, copyrights, etc. These all rights, titles and interests are usually assigned to the client for whom the work was done during the period of contract.
2. Assignment under Section 18 of Act: In case you have missed signing a contract with the tattoo artist and you still want to be the owner of the copyright, this can be done by the way of assignment as stated under Section 18 of the Act. Section 18 of the Act states that owner of the copyright in an existing work or prospective owner of the copyright in future work can be assigned to any person either wholly or partially provided that assignment shall take place when the work comes into existence. It is also important to note that the assignment shall only be valid under the sign of assignor or his duly authorized agent.
3. Relinquishment of Copyright: Relinquishment of rights can be done under Section 21 of the Act. The tattoo artist can very well relinquish all his rights comprised in the copyright in the work by giving a notice in the prescribed format to the Registrar of copyrights. 

In US, the National Football League Players Association had also warned players to seek copyright waivers from their tattoo artists to guard them against any lawsuits in the event images of the tattoos are used intentionally or unintentionally in advertisements, video games etc.

4. Granting a license: A tattoo artist who is the owner of the existing tattoo or any tattoo that he might create in near future can very well under Section 30 of the Act grant any interest in the right by license in writing by him or his duly authorised agent.

Copyright Protection v. Fundamental Human Rights

Due to the lack of explicit law relating to tattoos and the dearth of judicial precedents, their exists baffling contradiction between who owns the copyright and the fundamental freedom of an individual. As we have already concluded that the tattoo artist owns the copyright in that tattoo. So, he owns the moral rights like the right to integrity which means that he can restrict the tattoo bearer from altering, modifying, or doing anything detrimental to the tattoo artist’s reputation.

Now, this, in turn, has a negative impact on the human rights of the tattoo bearer. If complete protection is provided to the tattoo artist it will create dire consequences on the human rights of tattoo bearer, while completely repudiating tattoo artist’s right would discourage them from displaying their creativity. So, the issue is also required to be looked at from this perspective.

Conclusion

It can very well be concluded that tattoos are artistic work under Section 2(c) of Act and the tattoo artist is the owner of the copyright according to the Section 17 of Act. In absence of any legal contract with the tattoo artist regarding the ownership of the copyright, there are several ways discussed above through which tattoo bearer can become the owner of the copyright. 

Even with the conclusion from our side, the law regarding tattoos and their copyright is still muddy as most of the high-profile cases regarding this issue have been settled out of court.

So, the next time when you visit a tattoo store, don’t just concentrate solely on the design, repute and safety but also make sure to read at the express terms and conditions made by the artist or tattoo studio. It is very important to have a discussion about Intellectual Property Rights. If you are the person who invests a huge amount of money, time, effort and skin on tattoos then it is always wise to consult a legal expert before getting inked. It is more essential for celebrities because tattoos are considered as part of their identity and brand. GenX loves to copy their favourite celebrities, from having the same hairstyles to even buying similar clothes. Even they copy tattoos that they see on their favourite movie star or sports legend, but they should make sure that they are not infringing the copyright too. It is always wiser to bear the pain just once and get them done with the legal agreement for its ownership.

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