Copyright is an exclusive legal right given to the creator on his tangible work that entitles him to recreate, reproduce or publish the work for monetary gains or otherwise and also prevents someone else from doing the same. A creator can protect his original work of authorship including literary, dramatic, musical and artistic work.
The issue of the copyrightable nature of tattoos gained attention because of the 2011 movie, Hangover Part II. One of the characters of the movie had a replica of the famous Mike Tyson face tattoo. The Tattoo artist had already registered the design with the United States Copyright Office and thus, sued Warner Bros. for copyright infringement.
Even though the parties, later on, settled the case with confidential terms and agreements, it raised many questions.
The questions being:
Are tattoos copyrightable?
The right of ownership?
What amounts to infringement?
- Are tattoos copyrightable?
As mentioned above, all the original work of authorship is protected by copyright and no international convention or the Indian Copyright Act, 1957 explicitly excludes tattoos. Thus, tattoos are copyrightable and hence many tattoo artists are getting their original designs copyrighted.
- Right of ownership?
The second question involved is who would be the owner of the copyright, the tattoo designer or the person on whose body the tattoo is engraved?
The U.S Copyright law protects the original work of authorship and thus the right of ownership of tattoo rest on the tattoo designer.
Most legal scholars agree that a tattoo artist offers his client an implied license to display the copyrighted work, but that license does not necessarily include all of the rights afforded under copyright laws. The client may not have the right to make reproductions or derivatives of the tattoo without the artist’s permission.
In the UK too, if the person is getting a tattoo that is not his original design, the ownership would lie with the tattoo designer with no provision of “fair defense” to rely on.
In India, under Section 17 of the Indian Copyright Act, 1957 the first owner of the copyright is the author of the work (in this case the tattoo artist).
However, the law regarding ownership of copyright is not definite and still in it is primitive stage. This is primarily because there is no statute or judgment to seek guidance.
- What amounts to infringement?
In case of Warner Bros. even though no judgment was passed, in her comments, Judge Perry supported the rights of tattoo artist and stated that a tattoo can be subject to copyright if it an original work of authorship. She also refused to accept Warner Bros. strong contention claiming the use of tattoo as a parody. According to her, the tattoo depictedan exact replica and thus cannot be called a parody just because it was featured in a comic film.
Though it may fall in the category of fair use in case of private users, the usage becomes commercial when replicated by a company or when the design is worn by a celebrity, and thus, may lead to infringement.
The law regarding tattoos and their copyright is still ambiguous. Till date, all the high profile cases regarding the issue have been settled out of court. Thus, initiating the conversation but leaving everybody without any definite conclusion.
In a time where IP rights are getting recognized and artists are given due credit for their work, there is no reason to exclude tattoo artists from enjoying the privilege of these acts. Many tattoo artists are getting their original work registered, but due to the lack of specific legal guidelines, the extent of its implementation remains questionable.