Understanding the Concept of Copyrights in Tattoos

In today’s ever-progressing day and age, tattoos have evolved from a niche subcultural expression to a mainstream form of art. As the tattoo industry grows to flourish, debates around the intellectual property rights in a tattoo seem to be never-ending. This article aims to explore the intersection of tattoos and IPR in India, diving into the relevant legal provisions and a discussion around leading case laws shaping this deliberation.

People were first attracted to the aspect of copyrightability of tattoos when Victor Whitmill, the artist behind Mike Tyson’s iconic face tattoo, filed a copyright infringement lawsuit[1] against Warner Bros for using an identical tribal tattoo on a character in the movie Hangover: Part 2. In light of Whitmill’s existing copyright on the tattoo obtained over eight years back from the United States Patent and Trademark Office, Whitmill alleged that Warner Bros exploited his artistic work by using a replica of his copyrighted work without his prior consent. Interestingly, Warner Bros tried to defend their case arguing that the doctrine of fair use is considered as an exception to the exclusive rights granted under the copyright law and the doctrine allows limited use of a copyrighted work without prior consent from the original creator.[2] The presiding judge, however, dismissed the argument, calling it “silly”, particularly since the tribal tattoo was an exact imitation of Whitmill’s artwork. While the case did not mature into a formal trial and was settled outside the court, the case, however, embarked conversations around ownership and fair use in tattoos.

In the Indian landscape, a commonly used example while discussing tattoos is that of the megastar, Shah Rukh Khan, who is the first Indian celebrity to get a copyright for a tattoo registered in his name.[3] In 2011, the Registrar of Copyrights granted the actor a copyright in the letter D for his film Don 2.

In India, tattoos are not defined under any legislation specifically. On a liberal interpretation of Section 2(c) of the Copyright Act, 1957 (the “Act”) which includes paintings, sculptures, drawings, engravings or photographs, it can be argued that tattoos fall within the purview of an “artistic work”. Both drawings and engravings could be construed to include tattoo, since it is a depiction on the human skin or body prepared by combining both these techniques. Shah Rukh’s Don 2 tattoo is a testament to the Registrar’s validation to copyrightability of tattoos. Section 2 (d)(iii) of the Act states that the artist will be the author of an artistic work, not including a photograph. As per Section 13(1) of the Act, copyright can subsist in any artistic work provided that it is ‘original’. As long as the originality and requirement of minimum modicum of creativity of a design is maintained, there is no pertinent issue for it to be fixated on the human body as a medium of expression. Section 14(c)(ii) entitles the copyright holder the right to communicate the work to the public. This goes to say that if the tattoo artist were to exercise this right and communicate the work, he would have rights over the ‘artistic work’, i.e., the tattoo over the tattoo bearer’s body unless the artist has tattooed himself.

Now comes the next important question, i.e., who is the owner of a tattoo? Is it the tattoo bearer or the tattoo artist? The ownership of tattoos is clearly a contentious topic. Prima facie, it is the author of the work (in this case, the tattoo artist) who is the first owner of the copyright, even if the work is permanently on someone else’s body. Generally, a tattoo artist is considered as a hired employee and as per Section 17(c) of the Act, the employer shall (in this case, the tattoo bearer), in the absence of any agreement to the contrary, be the first owner of the copyright. From a practical standpoint, it does not sound problematic as once the tattoo bearer pays for the tattoo, he should ideally be able to enjoy the rights that vest with it. Legally speaking, however, while this sounds like a straightjacketed proposition, these rights remain highly unexplored owing to the ambiguity of ownership. This is because tattoo artists are usually freelancers and not employed under a work-for-hire agreement, thus their relationship might not qualify as a ‘contract for service’ as per the Act. What follows is that, can the ownership of a copyright be transferred from the tattoo artist to the tattoo bearer? Yes, a few instances where such a transfer can be effectuated could include tattoo artists providing their services as independent contractors, assignment[4], relinquishment[5] of the copyright or through an explicit license.

While we have been able to appreciate the scope of tattoos as copyrightable work under our law, it remains an aspect of the artistic industry that needs to be attended to, lest the ambiguities remain. Within the realm of copyright infringement, art on human body can be a challenging aspect, especially when it involves liability on part of both, the tattoo artist and the tattoo bearer. Few practices adopted over the years include execution of clear contracts between the parties, explicitly stating who owns the tattoo design, extent of permissible use of the tattoo, vis-à-vis commercial use or use on social media, limitations on further modifications or reproduction and licensing. There is an imminent need for recognition of the unique nature of tattoos as living art in the legislative framework, and a policy for determination of ‘originality’ of such art work.

Summing up, tattoos as symbols of personal identity, have become a legal flashpoint in the world of intellectual property. Over the years we have seen global courts wrestle with questions of authorship, fair use, personality rights, and commercialization, with no single global consensus. As digital economies blur the lines between public and private, art and commerce, the legal sphere ought to adept to disputes inked, literally, on to the skin.

[1] Case No. 4:11-cv-00752-CDP, Missouri Eastern District Court

[2] https://www.marklitwak.com/the-hangover-ii-tyson-tattoo-copyright-infringement-suit.html 

[3] https://indianexpress.com/article/entertainment/entertainment-others/srk-registers-don-2-tattoo-in-his-name/

[4] Section 18 of the Act.

[5] Section 21 of the Act.