This article is written by Anisha Bhandari pursuing B.A LL.B (HONS.) from Institute of Law, Nirma University. This article discusses the issues involved with copyright and trademark when it comes to body art.

Introduction

The application of the standard legal doctrine to body art could lead to some disquieting results. The difficulty of monitoring the subject or the subsequent use of his/her designs by others may discourage many body artists from trying to enforce their rights, or even from registering their copyrights (a prerequisite for filing suit and obtaining statutory damages). And perhaps copyright owners, trademark owners, and celebrities have not raised the issue of incorporating other people’s intellectual property into body art because of the concern that doing so would irritate fans, and because of the high cost of controlling those uses. 

However, as intellectual property rights begin to grow on historically unseen facets of human nature, it seems almost likely that more individuals may begin to claim intellectual property privileges in their body art creations, or against the infringing usage of their intellectual property in the body art of others. The most probable possibility is that an individual performs body artwork in a widely advertised, promotional, and potentially degrading fashion. Tattoos and other types of body adornment have been the focus of significant study on the part of cultural researchers, art historians, fashion theorists, photojournalists, and others. As these writers illustrate, body fashion goes back several centuries and has appeared in nearly every human society.’ Like many folk artists once shunned by the world of fine arts, body artists take their place in the world of fine arts.

Copyright Issues

Copyrights shall reside in the initial works of authorship, even pictorial works that are set in a measurable form of expression. There is no question that certain body art designs disregard just the required amount of originality essential to preserve copyright protection, whereas some are so popular that they should be deemed acceptable and thus not entitled to copyright protection. An example would be a clichéd tattoo design, such as a heart with a couple of first names inside, or perhaps a standard harlequin makeup. The original pictorial piece, though, represented in a tattoo or facial make-up, pattern may tend to be copyrightable as long as it is set in a visible form of communication, such as a human body. In the case of copyright of the piece of art, the creator of the work retains a number of proprietary privileges, including the freedom to creation, translation, public exhibition, and, in certain instances, moral rights.

The assumption of copyright protection in body art nevertheless raises some difficult questions, including issues of copyright ownership, “incidental” reproductions, etc. The relevant issue is that the inclusion of another person’s patented concept into a tattoo or other body art infringes. The following issues are:

• Ownership

Copyright first belongs to the creator of a piece of authorship, who can eventually grant or award the copyright to someone else. However, depending on the circumstances, the “creator” of a body-art work may be the body-artist (or his employer), the subject (or his employer), or both. The most obvious scenario will be one in which the tattoo or makeup designer is the rightful owner who utilizes a human “canvas” to produce a job of his own choosing. In such a scenario, the body artist should have been similar to a portrait painter or a photographer. Unlike a portrait painter or a model, the body-artist will hold the rights to his work, particularly though (1) the job involves the image to his another person, and (2) another person, owns a physical object (e.g. a canvas or a negative processed object) in which the work is embodied. In the body art example, of course, the work is (literally) embodied in the body of another person. If a thesis is a collaborative piece, that is to say, it is prepared by two or more artists with a view to integrating their inputs into inseparable or interdependent sections of a unitary whole. In order for this result to occur, both the subject and the artist would have to make an independent contribution to copyrighted expression. For example, the artist may consult the subject for specific, concrete ideas on what to include in the tattoo.

• Unauthorized Reproductions

As a general rule, an individual who reproduces a considerable portion of a copyrighted work without the consent of the copyright owner is prima facie an infringer and must thus assert any affirmative protection, such as fair use, in order to escape liability. This will imply that the illegal replication of a body-art protected item, whether in another body-art work, an advertising, a sculpture, or some other media, is prima facie an infringing act. However, the question arises as to whether this result necessarily results when a person reproduces a work of body art, such as a tattoo or a make-up design, by merely photographing or filming the subject. In Davis v. Gap, Inc., an eyewear manufacturer brought suit against The Gap, a major multinational apparel and accessories company, after one of the designer’s patented eyeglass prototypes featured in the Gap Promotional Commercial on a sample.

The Court dismissed the claims brought out by The Gap’s that the duplication was de minimis or covered by the protection of fair usage. However, because the artist could not claim his patent in good time, he was not entitled to substantive damages even if the court ruled that he might be entitled to at least $50 in real damages on the grounds of proof that he had already received a $50 license fee for future usage of the design. Technically, there could be a cause of litigation even though reproduction is created for personal use, so an accidental violation is not a protection against a charge of breach of copyright. However, the expense of putting a copyright on the casual fan photographer will possibly be prohibitive, even in situations such as the image shown to a large public (such as the website) or the copyright owner wishes to create a precedent of fear. And even if the author wanted to complain, the fan photographer would always have a good fair use shield as the processing expense of obtaining approval in anticipation of making the picture would almost definitely have surpassed the profit of the use.

• Body Art Infringement 

Another option is that the body artist would use someone else’s patented pictorial work to build his own product, without the consent of the copyright owner. Suppose, for example, that the tattoo artist reproduces an image taken from Britney ‘s patented photograph when it occurs in one of her Pepsi advertisements and tattoos it over Eminem ‘s arm. (Another illustration maybe a tattoo of a fictitious, licensed character on tv or on comic pages.) Under these terms, the tattoo artist is breaching the proprietary right of reuse of the copyright owner-and so, probably, are those that are photographing the tattoo, as mentioned above. Alternatively, suppose the tattoo artist alters the image of Britney Spears so that Justin Timberlake and Marilyn Manson lick each side of her face. Here, too, the tattoo artist is likely to infringe the copyright owner ‘s privilege to adapt. 

The subject may also be liable for a number of infringements of copyright, even though he does not reproduce the infringing image himself. For the first case, the subject would be in breach of the contractual privilege of the copyright holders to show the work to the public if the subject decided to view the tattoo in a public venue. Second, he may also be liable for contributory or vicarious infringement, depending on the facts. A person is liable for the infringement of copyright if he or she deliberately causes another person to infringe, for example, if he or she has been in a position to control the use of copyrighted works by others and has authorized the use without the permission of the copyright owner. 

Alternatively, vicarious responsibility can occur if the complainant has the privilege and the power to supervise the infringing conduct and a clear financial interest in the infringing operation. For example, Eminem presumably oversaw the transfer of the picture to his body, thereby fulfilling the first part of the examination. It is less clear whether it receives direct financial interest as a result of the infringement. Perhaps the tattoo would attract more people to purchase Eminem’s CDs or watch his videos, or the tattoo may be part of a publicity prank on his “Celebrity Bash” tour.

Trademark Issues

It focuses on the usage of trademarked symbols in body art: for example, tattoos featuring trademarked terms or titles (e.g. COCA-COLA, BRITNEY SPEARS), slogans, photographs or fictitious characters. In fact, trademark legislation forbids only such industrial applications of another trademark, i.e. applications in association with the selling of products or services. On that logic, the mere wearing of a counterfeit ROLEX watch is not infringement (or dilution) even though selling the watch would infringe it. The same logic would also imply that the sole usage of a piece of body art that contains a brand of another would not infringe it.

One set of cases, including the illegal usage of trademarked trademarks on jewelry and other items, indicates that the design of the designer will most certainly avoid trademark responsibility. For example, in the International Order of Job’s Daughters v. Lindeburg & Co., the Ninth Circuit held that the unauthorized use by the defendant of the fraternal organization’s collective mark on jewellery did not infringe on the grounds that the name and emblem were merchandised on the basis of their innate worth, not as a declaration of origin or funding. Similarly, in Plasticolor Molded Products v. Ford, the court introduced a “broad field” for the study of so-called “mixed-use” labels, i.e. labels that act both as source-identifiers and even, in certain cases, as “real” goods themselves. It indicated that courts would have to allow any possible post-sale misunderstanding, but that this ambiguity can be eliminated by allowing the supplier of a commodity that requires a trademark for practical purposes to make certain appropriate actions to avoid post-sale uncertainty compatible with the substantive usage of the trademark. In some situations, these interventions might require placing a warning.

On the other side, there is no question that other applications of body art, like a trademark, will give rise to liability. For example, suppose that an ad for a brand of athletic shoes shows a famous athlete with a tattoo of Bugs Bunny (or Cindy Crawford, or PEPSI-COLA) on his right bicep. Even if the artist applying the tattoo is not liable, the display of the tattoo in a commercial advertisement may well convey a false message that the owner of the trademark endorses the product, depending on how prominent the tattoo is and on other factors.

When deciding whether or not expressive and parodic uses of trademarks in body art infringe the rights of trademark owners, however, courts will be attentive not only to the needs of trademark owners but also to the concerns of authors, subjects and the public. This can also be assumed that, in particular situations, the challenge in creating an effective solution might have an effect on certain courts in seeking descriptive (or non-commercial, or parodic, or otherwise non-infringing and non-dilutionary) usage. Injunctions against infringing uses (and orders to destroy infringing goods) are likely to be even more common in trademarks than in copyright cases because of the interest in preventing consumer confusion.

Conclusion

As this brief discussion shows, the use of copyrighted works of authorship, trademarked symbols, or evidence of personal identity in works of body art may give rise to a number of thorny problems, some of which involve constitutional rights. The hypotheses posed are certainly not comprehensive in all the situations in which such problems can occur, but can allow the courts and future litigants to recognize some of the related concerns as well as the possible implications of alternate forms of addressing them. When these issues arise, courts should be sensitive to the needs of artists and subjects to express themselves without unduly violating the rights of content owners. The human body has been a medium of sublime artistic expression for millennia. As such, it demands the same reverence and dignity as more mainstream – we do not claim typical – art, such as painting and sculpture.

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