India

"An indelible mark or figure fixed upon the body by insertion of pigment under the skin or by the production of scars"

-Merriam Webster

INTRODUCTION.

The history of tattooing in India dates back to the late 1980s. Permanent tattoos were very common in Northern and southern parts of India and were called "Pachabottu" or "Pachakuthu" and "gonad" respectively. A tattoo can be defined as a type of body modification in which a design is created by injecting dyes, pigments, and inks into the layers of the skin, either permanently or temporarily, to change the pigment. This blog aims to provide an answer to the question of, "whether tattoos can be protected by copyright?"

IS IT POSSIBLE TO COPYRIGHT TATTOOS?

Is it possible to classify tattoos as artistic work under the 1957 Copyright Act? Section 2(c) of the Act defines artistic work as work that includes engraving, sculpture, painting, or a photograph. Tattoos inscribed on human skin are considered a "fixed tangible medium" and thus the Act's statutory criteria for being an artist's work is satisfied. Hence, according to Section 13(1) of the act, any artistic creation in India can be copyrighted. Furthermore, the registrar of Copyright gave the copyright to the letter 'D' to Shahrukh Khan for his film Don 2 in 2011, in his name¹. As a result, copyright may be used to protect any tattoo design that shows enough originality and is printed on physical media.

WHO IS THE OWNER OF THE COPYRIGHT FOR A TATTOO?

When it comes to copyright ownership, Section 17 of the Act states that the copyright belongs to the work's creator. As a result, the tattoo artist will be the copyright owner in the vast majority of cases. Yes, the tattoo artist who produced it is still the owner, even if the tattoo is on your skin.

In the case of S. Victor Whitmill Vs. Warner Bros Entertainment Inc.², a tattoo artist from Missouri sued Warner Bros. for exploiting Mike Tyson's tattoo in the movie Hangover II without his consent. Tyson's tattoo artist is a registered trademark with the United States Patent and Trademark Office. The court appeared to assume that tattoos were copyrighted. The tattoo was also alleged to be a parody by Warner Bros., but the Court ruled that because the tattoo depicted an identical duplication, it could not be called a parody just because it appeared or was included in a comic film. Despite the fact that there was an out-of-court settlement, there was no final judgment.

WHO OWNS THE COPYRIGHT OF A TATTOO?

Since the tattoo artist owns the rights to the design. The person or tattoo bearer on whose body the tattoo is drawn has several options for acquiring ownership of the copyright in that tattoo. The following are some of them:

Tattoo Artist Independent Contractor Agreement: It's an agreement between a tattoo artist and his/ her client in which the tattoo artist agrees to work for the client as an independent contractor. This agreement specifies the services to be provided, the parties' financial obligations, and, most significantly, who will hold the intellectual property linked with the artistic work. In the agreement, an ownership clause indicates who owns the "work product," which includes notes, drawings, models, moral rights, copyrights, and other items. Normally, the client for whom the task was done throughout the contract time receives all rights, titles, and interests.
Assignment under section 18 of the Act: If you haven't signed a contract with the tattoo artist but still want to own the copyright, you can do so by making an assignment under Section 18 of the Copyright Act. The copyright owner in an existing work or the prospective owner of the copyright in future work can be assigned to anybody, in whole or in part, according to Section 18 of the Act, as long as the assignment occurs at the time the work is created. It's also worth noting that the assignment is only valid if it's signed by the assignor or a duly authorized agent.
Relinquishment of Copyright: Rights can be relinquished under Section 21 of the Act. By filing a notice with the Registrar of Copyrights in the allowed manner, the tattoo artist can easily surrender all of his copyright to the work.
Granting a license: A tattoo artist who holds the rights to an existing tattoo or any tattoo that he/she may do in the near future can grant any interest in the right through a license signed by him/her or his/her legally authorized representative under Section 30 of the Act.

MERCHANDISING

Copyright Act does not cover stick-on tattoos or temporary tattoos and therefore these types of tattoos do not amount to any infringement. The Act can prevent copyrighted merchandise manufactured goods up to a certain extent and not beyond that. Further, section 15 (2) of the Copyright Act states that any design which can be protected under the Designs Act, 2000 but the same has not been registered under the act, will not be copyrighted in case the design is used in any article which has been reproduced by the owner of the copyright, more than 50 times, through an industrial process or with the owner's license by any other person. Therefore, the tattoos in form of merchandise cannot be copyrighted except if they are limited editions.

FAMOUS CASES:

SOLID OAK SKETCHES, L.L.C v. 2K GAMES, INC AND TAKE-TWO INTERACTIVE SOFTWARE, INC³ OR THE 'NBA' VIDEO GAME CASE:

Take – Two along with its subsidiary 2K launched the NBA 2K basketball video game series which depicted images and digital models of various NBA players including their tattoos too, and the game gained a massive popularity. Further, Take-Two paid a huge consideration of $1.1 Billion to acquire the rights for using NBA players' name from NBA. A license agreement was signed between a tattoo artist, who inked three NBA players and Solid Oak. Solid Oak sued Take-Two for infringing their copyright by displaying their artistic work in NBA 2K video game and imposed an obligation on NBA players and Take- Two to get prior permission from Solid Oak by paying license fees. The court pronounced judgement on three grounds.

De Minimis Use: Out of 400 players the tattoo appeared on 3 players, therefore the use of tattoo by Take-Two was De Minimis. Hence, due to the fast movements of the players in the video game the tattoos were unidentifiable.
Implied License: It was observed by the court that the NBA players had the indirect license to use their tattoos as they would be appearing in public gatherings and thus players as well as Take-Two was allowed to use player's tattoos through both indirect and direct licenses.
Fair Use: Further the court observed that all the conditions of fair use were fulfilled by Take-Two and the nature of use was not just a mere depiction of artistic work on the skin, it was a transformative use.

ESCOBEDO v. THQ Inc.,⁴ OR THE UFC VIDEO GAME CASE:

THQ were the creators of an Ultimate Fighting Championship (UFC)-based video game. The video game featured Carlos Condit, showing a tattoo of a lion on his torso. The tattoo artist sued THQ for copyright infringement as the tattoo artist claimed that he was the original owner of the design of the tattoo and he owns a registration for the copyright to the lion's design and THQ was infringing his work by using it in their video game. Further, the case was settled where the tattoo was removed from the fighter, and a deal was signed that it would never appear in the EA Sports "UFC" series that followed.

REED v. NIKE⁵ OR NIKE TATTOO CASE:

The first case of the infringement of copyright of tattoo is the case of Reed v Nike. Reed, a tattoo artist claimed that he was entitled to the rights, title and interest of the original art work and subsequently he was the owner of the tattoos on Mr. Wallace's arm. Reed made three claims for relief.

Copyright infringement of his art work and subsequently reproducing, copying, distributing, and publicly using Wallace tattoo without his permission against Nike and Weiden.
Contributory infringement against Wallace for making Weiden and Nike believe that Wallace was the exclusive owner of the copyright of the Wallace tattoo.
Reed was entitled to a percentage of profits obtained by Wallace for the use of his tattoo in the Nike advertisement.

There was an out of court settlement before the case could go to trial.

CONCLUSION

According to Section 2(c) of the Act, tattoos are artistic works, and the tattoo artist holds the copyright under Section 17 of the Act. It is clear therefore that the tattoo-bearer can obtain the copyright in one of the ways indicated above if there is no legal agreement with the tattoo artist about ownership of the copyright.

Footnotes

1. Agencies, SRK registers Don 2 tattoo in his name, Archive, (Jul. 15, 2011, 11:43 AM) http://archive.indianexpress.com/news/srk-registers-don-2-tattoo-in-his-name/817871/

2. S. Victor Whitmill Vs. Warner Bros Entertainment Inc, 4:2011cv00752

3. Solid Oak Sketches, LLC v. 2k Games, Inc., 16-00724

4. Escoedo v. T.H.Q Inc, 2:12-cv-02470-JAT

5. Reed v. Nike, No. 05/CV/198 BR (D.Or.Oct.19,2005)

Is It Possible To Copyright Tattoos In India?

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.