Whether one likes them or hates them, tattoos have been a part of human culture and history for centuries now. Even in India, records indicate that many members of ancient tribes of north-east India and Rajasthan would adorn tattoos to display their rank within the tribe or for other religious purposes. The practice of tattooing is commonly referred to as “Gudna” in many parts of the country.
Owing to the fact that tattoos are a permanent commitment, tattoos carry a strong sense of ownership for its wearer. Most tattooed people and tattoo artists agree to the same and believe that once an artist has received consideration for his services, the tattoo belongs to the wearer for all practical purposes.
While the above position seems to be a logical one, as a tattoo is permanently engraved under the skin of the wearer and hence the wearer ought to be the owner of the tattoo, the same has some interesting connotations when looked at strictly from a legal perspective. In terms of Section 2 (c) of the Indian Copyright Act, 1957 (“Act”), artistic works are defined as “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”. Considering the fact that most modern day tattoos are original/ custom designs (barring flash tattoo designs that are mass produced), a tattoo (in principle) satisfies all the pre-requisites of being copyrightable. Furthermore, Section 17 stipulates that, subject to a contract to the contrary, the author of an artistic work would be the first owner of the copyright in the work. Accordingly, the tattoo artist being the author of the tattoo (i.e. the work), Section 14 (C) of the Act, would confer the following rights in favour of the tattoo artist as the owner of the copyright in the tattoo:
“S. 14 (c) in the case of an artistic work,—
- to reproduce the work in any material form including;
- the storing of it in any medium by electronic or other means; or
- depiction in three-dimensions of a two-dimensional work; or
- depiction in two-dimensions of a three-dimensional work;
- to communicate the work to the public;
- to issue copies of the work to the public not being copies already in circulation;
- to include the work in any cinematograph film;
- to make any adaptation of the work;
- to do in relation to adaptation of the work any of the acts specified in relation to the work in sub-clauses (i) to (iv)”
In addition to the above, under Section 57 of the Act, a copyright also confers certain moral rights unto the author, these rights aim to protect the personality of the author and the integrity of his/her work from mutilation, modification or destruction. It is difficult to determine the scope of moral rights vis-à-vis a tattoo as the person wearing the tattoo may wish to remove or modify the same, as it is their body and they have the right to body autonomy. On the contrary removing or modifying a tattoo would also adversely affect the moral rights of the artist.
Now that we have covered the various rights that are conferred upon an author, it would be prudent to make reference to the American case, Victor Whitmill Vs. Warner Bros, as this was the first case which brought the copyrightablity and ownership of a tattoo in the mainstream. The said case revolves around possibly the most well-known and most recognised tattoo in the world, i.e. boxing legend Mike Tyson's tribal face tattoo. This was the basis on which S. Victor Whitmill, the artist who designed and executed Mike Tyson's face tattoo, filed an infringement suit against Warner Bros, for unconsented use of his tattoo in the feature film, Hangover-II. S. Victor Whitmill cemented his ownership over Mike Tyson's tattoo by submitting that he had Tyson sign a tattoo release form prior to getting the tattoo, in terms whereof “all artwork, sketches and drawings related to my tattoo and any photographs of my tattoo are property of Paradox-Studio Dermagraphics (i.e. Whitmill's business). On the strength of the said waiver, Whitmill filed an infringement suit before the Federal District Court, seeking an injunction prohibiting the screening of the movie on grounds of copyright infringement. The primary defence raised by Warner Bros. was that it had the legal right to reproduce the tattoo under the “Fair Use” doctrine as the tattoo was being reproduced to parody Mike Tyson, who also makes guest appearances in the film. On the said issue, the learned Judge, noted that while it would not be possible to halt the release of the film as that would cause substantial losses to the defendant and multiple cinema halls, the Learned Judge remarked that the suit should be slated for trial as Whitmill would likely succeed in the case of copyright infringement.
Unsurprisingly, before the matter could go to trial, Warner Bros. arrived at an amicable settlement with Whitmill, details of which are not available in the public domain. The said case opened up a flood gate of litigations as many American artists have thereafter filed similar infringement suits, against video game developers for using their tattoo designs in video games (as tattooed on various sports stars) without their consent.
Fortunately or unfortunately, no such cases find any mention in Indian jurisprudence. Nevertheless, the aspect of a tattoo being copyrightable in India has been laid to rest, as Shahrukh Khan was granted copyright protection for his “D” tattoo that he wore in the film Don 2. As noted above, subject to a contract to the contrary, the ownership over a tattoo would be with the tattoo artist. This would not entail that a person getting tattooed cannot ever acquire rights over his/ her tattoo. One can acquire rights over a tattoo, by way of an assignment or license agreement, or if the tattoo artists relinquishes his rights over the tattoo. Considering the above, it would definitely be advisable for people who are considering getting a tattoo, to execute a suitable contract with their tattoo artist to clearly define the ownership rights vis-à-vis the tattoo.
Going back to the rights conferred upon an author, a bare perusal of rights conferred under Section 14 (c) of the Act, makes it starkly clear that the ownership rights conferred unto a tattoo artist would have the effect of controlling and/or regulating the tattoo recipients actions, as the tattoo is forever imprinted under the recipients skin. This situation would severely affect the tattoo bearer's freedom as enshrined under Article 19 and 20 of the Indian constitution. Accordingly, considering that the tattoo industry is booming in India, it may be prudent that separate laws be enacted, which could cover the complexities of this unique art form and its copyrightablitly, whilst securing the rights of the tattoo artist and the human canvas.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.