You do not own your tattoos !!

The art of tattoos has been practiced since the Neolithic age. The earliest evidence till date of tattoos on a human body were found on Ötzi the Iceman whose frozen body was discovered in 1991. The 5,300-year-old Iceman was found to have not one but 50 tattoos on his body that covered him from head to toe.[1] Earlier tattoos attracted a negative connotation and people with tattoos were seen with a bad eye. However, today, tattoos are considered a form of self-expression and have come to be socially acceptable. Scores of celebrities and sportspersons adorn tattoos that have come to be a part of their image. The general acceptance of tattoos and the growing number of people getting one raises several questions with respect to the intellectual property rights in a tattoo such as, are tattoos copyrightable, and who owns the copyright in a tattoo?

As tattoos are an expression of the tattoo artist’s creative intelligence, they can be protected as artistic works[2] under the Indian Copyright Law. It is to be noted, however, that only original works of art can be protected under the Law and not the pre-existing designs that are freely available on the internet. Further, as per Section 17[3] of the Copyright Act, 1957, the author of the work is the first owner of the copyright therein. Therefore, the copyright in the original tattoo shall deem to vest with the tattoo artist where he/ she is the original creator of the work. However, where the person getting the tattoo also had a substantial input in the design of the tattoo, then the artistic work can be a work of joint authorship. Being a copyright owner, a bundle of rights is granted to its holder under Section 14 of the Act which also includes the right to communicate the work to the public, licensing the work, etc. Since the point of getting a tattoo is generally so that the tattoo bearer can flaunt it, the tattoo artists may not object if the tattoo is seen in a picture of the tattoo bearer in a magazine, or a selfie, or the tattoo bearer acts in a movie or a music video where the tattoo is displayed prominently. The issue arises when the tattoo which is associated with an individual is used by a third party for commercialization and such unauthorised use may give rise to a copyright infringement claim by the tattoo artist.

Though the jurisprudence surrounding copyright infringement in respect of tattoos is still at a nascent stage in India, however, there have been a few cases in the United States on this subject. One of the cases that gained traction was the copyright infringement suit brought by the tattoo artist S. Victor Whitmill against Warner Bros.[4] In the movie the Hangover Part II, one of the characters wakes up with a tattoo on his face that was identical to the tattoo on Mike Tyson’s face made by Whitmill. Whitmill who had registered the tattoo with the US copyright office sued for copyright infringement on the ground that Warner Bros. had not attempted to take permission from him before placing the tattoo created by him on another person. Warner Bros. in defense argued that the depiction of the tattoo was a parody and hence, such use was protected under fair use. However, the judge disagreed with this defense and held, “This use of the tattoo did not comment on the artist’s work or have any critical bearing on the original composition,” … “There was no change to this tattoo or any parody of the tattoo itself.” The matter was ultimately settled out of court. In another case, infringement action was brought by Solid Oak Sketches LLC against the creators (Take- Two) of the video game NBA 2K16. The video game which features prominent basketball players such as LeBron James and Kobe Bryant also prominently showed their tattoos over which tattoo artists at Solid Oak Sketches held copyrights[5]. In a letter sent by the lawyers of Solid Oak Sketches to Take- two, the artists had agreed to license the tattoos for a fee of 1.14 Million USD. However, the negotiations did not come through. In the complaint, Solid Oak Sketches demanded an injunction against the production of the video game as well as damages as high as 1,50,000 USD per infringement. However, this case was also settled outside the Court. In another similar case, the tattoo artist Mr. Escobedo sued THQ Inc. for damages over copyright infringement of the tattoo of a lion on Carlos Bandit, featured in the video game UFC undisputed[6]. Mr. Escobedo in his complaint alleged that THQ had violated his exclusive rights in the tattoo by copying the tattoo and creating a derivative work without his permission. However, in this case as well the judge did not have the opportunity to answer pertinent questions related to copyrights in tattoos and the case was settled outside the court for an undisclosed amount.[7] Owing to the above cases, NFL Players Association issued an advisory to all their players to obtain waivers from their tattoo artists should the players want their tattoos to be featured in a video game, merchandise, etc.[8]

The absence of any jurisprudence discussing the extent of copyright protection in tattoos, calls for a fine balance between the exclusive privileges of the copyright holder and the right to one’s own body. One of the ways in which lawsuits with respect to copyright infringement in a tattoo can be avoided is by negotiating beforehand as to who will own the rights in the original tattoo. Further, if the tattoo artist agrees, the tattoo can be commissioned as a work for hire and in that case the tattoo bearer will have full freedom to further communicate/ license the work as per his/ her wish. Lastly, when in doubt, it is better for companies to seek the permission of the tattoo artist before including any copyrightable tattoo in their works than face an infringement suit.

For any queries, please write to Neetika Gandhi at neetika.gandhi@iprattorneys.com.

[1] https://www.nationalgeographic.com/news/2013/10/131016-otzi-ice-man-mummy-five-facts/

[2] Section 2(c)(i) “artistic work” means,—

(i) 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

[3] 17. Subject to the provisions of this Act, the author of a work shall be the first owner of the copyright therein …

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

[5] Solid Oak Sketches LLC v. Visual Concepts LLC et al, U.S. District Court, Southern District of New York, No. 16-00724

[6] Complaint at 2, 6, Escobedo v. THQ, Inc., No. 2:12CV02470 (D. Ariz. Nov. 16, 2012), 2012 WL 5815742.

[7] https://www.nytimes.com/2018/12/27/style/tattoos-video-games.html

[8] https://www.espn.in/nba/story/_/id/14693836/makers-nba2k-sued-graphically-representing-tattoos-players-permission

The article was originally published on www.lexology.com and can be accessed here.