COPYRIGHT IN TATTOOS

A tattoo is a unique blend of design, verses, graphical notation, or picture in which a minimal degree of creativity is adopted to gain protection. The intangible thought of the artist is affixed in the form of a tattoo, giving it protection under section 13 read with section 2(c) of the Copyright Act, 1957.

COPYRIGHT IN TATTOOS

INTRODUCTION TO COPYRIGHT LAW

Copyright subsists in the original work of the expression of literary, artistic, dramatic, cinematographic, sound recordings, etc. the same is governed by the Copyright Act of 1957 which deals with all the aspects of copyright regulation in India.

Berne Convention for the Protection of Literary and Artistic Works (1886), and Universal Copyright Convention (UCC) 1952 under the auspices of UNESCO, stood as the foundation for the copyright protection across the globe. Since India is a member country of both the conventions, it emerged as a legal obligation to protect the rights of the creator.

COPYRIGHT IN TATTOOS UNDER ARTISTIC WORK

A tattoo is a form of artistic work where design is made in the human body by inserting ink, dye, or colour pigment with an original expression of thoughts using technical equipment or manual skills. Different signs, symbols, pictures or even verses are engraved together to give it a creative footing. Tattoos are a copyrightable under artistic work under section 2(c) of the Copyright Act, 1957.

The Copyright Act protects the original work of the creator where the artist has put down the original expression of its ideas into the form of painting, drawing, sculpture, photograph, calligraphic work or such work which possesses artistic character.[1]

Under section 13 of the Copyright Act, 1957 the copyright subsists in literary, dramatic and artistic work of the owner. The work must be original and an outcome of the intellectual capacity of the creator. Section 17 of the Copyright Act, 1957 provides that the author of the creator is the first owner of the copyrighted work. This provision protects the artistic work of the creator where tattoos are also given protection for being the artistic design of the intellectual creativity of the tattoo artist.

The Copyright Act protects the original work of the creator where the artist has put down the original expression of its ideas into the form of painting, drawing, sculpture, photograph, calligraphic work or such work which possesses artistic character.[2]

FIRST OWNER OF THE TATTOO

The Act protects the creator of the artistic work therefore the protection is given to the tattoo artist and not the tattoo bearer. The tattoo bearer is the proud owner of the tattoo engraved in their bodies but the ownership lies with the creator. This is in reference to section 14(c) (ii) of the Copyright Act, where the author has the right to communicate its work to the public at large, without transferring the right to use or copy.

The tattoo artist is the first owner of the tattoo and hence the copyright subsists with the tattoo artist solely, provided that it is not bound under any agreement on the contrary. This is a subject matter of moral rights of the tattoo artist.

Features of Copyrightable Tattoos:

  1. Tattoos are tangible designs which are physically engraved in a human body. The intangible thought of the artist if affixed in the form of a tattoo, giving it protection under the Copyright Act.
  2. Tattoos area medium of expression of artistic work which qualifies the requisite of the originality of thoughts.  
  3. A tattoo is always a unique blend of designs, signs, verses, graphical notations, pictures or drawings in which a minimal degree of creativity is adopted to gain protection.
  4. By virtue of being expressed in a tangible or physical form, a tattoo is capable of being registered in the Copyright Registry for protection.
  5. While filing the registration form, the Applicant is required to submit the pictorial representation of the artistic work to gain copyright protection.
  6. The Copyright Act, 1957 does not explicitly provide for a physical representation of the expression, however, a tattoo is expressed in physical form in the human body.  

COPYRIGHT INFRINGEMENT OF TATTOOS

The copyright infringement of Artistic work occurs when other person uses, exploit, copies or imitate the original and copyrighted work of the creator. The owner of the tattoo must establish these points:-

  1. That the ownership of the copyright lies with the tattoo artist.
  2. That the alleged reproduction of copyrighted work (by Defendant) is an original creation of the tattoo artist.[3]
  3. That minimal degree of creativity is present in the copyrighted work.[4]

Copyright protection is granted to the creator of the work. It begins from the moment the work becomes affixed in a physical or tangible format which includes but not limited to painting, drawing, architecture, photograph and sound and video recording. The protection is granted from the time the work becomes expressed. The certificate of copyright is a document granted to the first owner of the copyright and is evidence of copyrightable work under section 48 of the Copyright Act, 1957.

JUDICIAL PRONOUNCEMENTS

In a famous case of Catherine Alexander v. Take-Two Interactive Software, Inc. 2k Games, Inc., 2k Sports Inc., WWE Inc., and Other[5], before the United States District Court discusses the issue where a famous tattoo artist Catherine Alexander inked a tattoo in the body of Randy Orton, a WWE wrestler and the same tattoo was copied by the creator of a gaming company in its video game WWE 2K. The gaming company had taken license from Randy Orton to portray his character in the video game where the tattoo played a crucial role in maintaining accuracy. Alexander Catherine sued the gaming company for copyright violation in Tattoo, and that she did not give permission to copy, reproduce or duplicate the tattoo design.

Here the summary judgment discussed that the tattoo artist Alexander holds the copyright in tattoo but this is a case of fair use of copyright and de minimis, where the implied license gave sub-licensing to the gaming company to use tattoo in the virtual character or Randy Orton. The case still awaits a proper judgment.

Another case of S. Victor Whitmill v. Warner bros. Entertainment Inc.[6] is pending before US District Court of Missouri, where Mr Whitmill’s creation of tattoo on the body of famous boxer’s Mike Tyson is in controversy. Warner Bros. a well-known name in motion pictures, has allegedly copied the tattoo and used it in the face of one of the characters from the movie ‘The Hungover 2’, without obtaining its permission or giving credits.

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The movie was prominently advertised across the globe with the pirated tattoo visible in the poster. This has violated the copyright of the tattoo artist. This case is pending before the court awaiting proper guidelines for copyright infringement cases in Tattoos.

CONCLUSION

Copyright in tattoo is an evolving scenario in the legal field. Tattoos are protected under the copyright law but hardly any speculation can be made about the future status of copyright in tattoos because of the absence of clear background and concrete regulation on the subject area. Surprisingly, or unfortunately, in India, we do not have good judicial pronouncements on copyrights in Tattoos. However, it has become a common practice to refer to the western legislations for some puzzling legal issue. 

The legal provisions under the Copyright Act, 1957 protects tattoos under artistic work but in the absence of clear guidelines for copyright protection and in the absence of adequate legal precedent on the recognition and enforcement of copyrights in tattoo has left the legal profession struggling towards a clear explanation.

 

BY - SOUMYA SONI


[1] Section 2(c) of the Copyright Act, 1957

[2] Section 2(c) of the Copyright Act, 1957

[3] Design Basics, LLC. V. Lexington Homes, Inc., 858 F. 3d 1093, 1099

[4] Feist Publication Inc. v. Rural Telephone Service Co. Inc., 499 U.S. 340, 362 (1991)

[5] Case No. 18-cv-966-SMY

[6] Civil Action No. 4:11-cv-752

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