When you get a tattoo, you probably assume that it's yours. After all, the
design is inked on your skin, and you paid an artist to put it there. However,
this may not be the case under copyright law. So, the question that arises is
who actually owns a 'tattoo'? A tattoo is a sort of body modification where a
design is formed by inserting ink, dyes and pigments, either indelible or
temporary, into the dermis layer of the skin to change the pigment.
The Copyright law provides copyright protection over artistic work, but are
tattoos considered artistic enough to possess their own copyright? A lot of
times, one tends to look up various designs as a form of inspiration before
getting their body permanently inked and sometimes, the exact same design can be
reproduced on the body. But who, according to the law owns this form of art? Can
there be an infringement of copyright on it when someone else takes inspiration
from it or reproduces the same? Who has the rights of ownership over the same?
One interesting question that arises in this context is whether or not a
tattooed person owns the copyright in their tattoo. Unless the copyright in the
tattoo was assigned to that person in writing, the answer is no.
Are Tattoos Protectable?
The answer to the question is in affirmation. Yes, tattoos are protectable under
Copyright Law. Copyright protects pictorial and graphic works as long as they
are fixed in a physical object and display originality. The requirement is that
the expression must be original to the author (i.e. it cannot be copied from
someone else), and it must possess at least a minimal amount of creativity.
Since copyrights are rights granted to artistic forms of expression on tangible
or physical mediums, tattoos ought to qualify, for copyright protection. In U.S.
where the applicable statute requires the pictorial, graphic and sculptural
copyrightable work to be original works of authorship fixed on a tangible medium
of expression, on the other hand, Indian law does not explicitly specify the
need for tangible medium of expression. However, due to the permanent nature of
the tattoos and the human body being the tangible medium of expression, the
doubts against tattoo not being copyrightable work, by definition, should be
It is to be noted that the applicability of copyrights to tattoos is only and
only on original and custom-made tattoos that are the subject of this
discussion. Standard tattoo in catalogues or on the walls of parlors are not to
be considered here in this. Out of all the ingredients, originality is the
principal ingredient, without which a copyright does not exist. And the efforts
made by the tattoo artists in inculcating the imagination of the tattoo bearer
are worth marveling about, it must be understood that if the copyrights of a
tattoo are to remain in the possession of the tattoo artist, then the rights to
exploit the copyrighted 'piece of art' also rests with them.
In India, tattoos can be protected by copyrights under 'artistic work' provided
they satisfy the statutory conditions such as; 'original work' and 'fixed in
tangible medium' (in the case of a tattoo, it's a human); this was given by the
Indian Copyright Office by registering the tattoo of the letter 'D' in the name
of Shahrukh Khan, for his film 'Don 2' in 2011.
Thus, a tattoo design can be protected by copyright, provided it shows
sufficient originality and is fixed on a physical or tangible medium. Though
there are no cases of disputes relating to copyright infringement in India yet
but there exist many cases relating to the same in various other countries.
Who Owns Tattoos?
According to Section 17 of the Indian Copyright Act, 1957, the author of a work
is generally considered as the first owner of the copyright.
A tattoo is classified as an artistic work under the Copyright Act,1957 and
therefore the tattoo artist is the considered to be the owner of the tattoo and
not the tattoo bearer.
Section 14(c) (ii) of the Indian Copyright Act, 1957 only specifies that the
copyright holder has the right to communicate the piece of work to the public.
It must be noted that this provision relating to the communication of the
artistic work to the public is in relation to 'artistic work' only implying that
tattoo artist is entitled to the rights of the artistic work only i.e., the
tattoo bearer's body that has been inked with the tattoo under Section 14.
It can be said that the tattoo artist has the right to control and regulate the
tattoo bearer's actions which, by all means, violates the very right to freedoms
promised to us by Article 19 and Article 21 of the Indian Constitution.
The painters, they, too, create art and have a right to copyright the same to
retain their originality, similarly, tattoo artist also enjoys the right of
ownership in case of tattoos. Also, unlike in the case of art collectors, the
tattoo bearer may merely own the piece of art and the copyrights of the designs
may still rest with the tattoo artist and certain amount of royalty may be
reimbursed to the artist for replication or reproduction of this piece of art on
various other mediums.
Generally, regarding copyright, the case of infringement occurs when the other
party uses the art and displays it or uses it through reproduction and
distribution without acquiring permission from the actual owner of the
In case of a tattoo, this is usually permanent because the art is on a person's
body. There is no way to cease once the art is already tattooed on the body.
However, the infringement lawsuit can stop the person from continuing with
tattooing others with the same art and the artist can also claim damages or
compensation for the same when there is valid evidence supporting infringement.
However, the artist can only sue for infringement if he or she has registered
the creation with the Copyright Office or else he or she cannot sue for
Tattoo Bearer As The Owner Of The Tattoo
Since the tattoo artist is the sole owner of the tattoo and the copyright of
that tattoo subsists with that tattoo artist only. But the tattoo bearer who is
bearing the tattoo on his body can also acquire the ownership of the tattoo by:
- Independent Contract Agreement:
It is a contract between the tattoo artist and the tattoo bearer wherein the
tattoo artist agrees to provide his/her services as an independent
contractor. This contract contains a proprietary information clause which
states that who will own the work product i.e., drawings, notes, moral
rights, etc. All these rights and interests are assigned to the tattoo
bearer for whom the work has been done as per the contract.
- Assignment under Copyright Act:
Section 18 of the Copyright Act talks about assignment which means, that
owner of the copyright in an existing work or the prospective owner of the
copyright in a future work may assign to any person the copyright either
wholly or partially, provided that in the case of the assignment of
copyright in any future work, the assignment shall take effect only when the
work comes into existence.
Section 21 of the act talks about the right of author to relinquish
copyright. The author here, in case of tattoos is the tattoo artist, who may
relinquish all or any of the rights comprised in the copyright in the work
(i.e., tattoo) by giving notice in the prescribed form to the Registrar of
Section 30 of the act talks about licensing wherein the owner of the
copyright in any existing work or the prospective owner of the copyright in
any future work may grant any interest in the right by license in writing
signed by him or by his duly authorised agent.
The matters related to a temporary or stick-on tattoo are not covered under the
copyright law and it does not amount to any infringement, therefore. It is to be
noted that copyright law cannot help to merchandise manufactured goods based on
copyrighted work more than a certain point.
Section 15(2) of the Indian Copyright Act states Copyright in any design, which
is capable of being registered under Designs Act, 2000 but which has not been so
registered, shall cease as soon as any article to which the design has been
applied has been reproduced more than fifty times by an industrial process by
the owner of the copyright or, with his license, by any other person. Thus,
copyright may not apply at all unless merchandising is limited to extremely
limited editions of products.
Mike Tyson's tattoo CaseWhitmill v. Warner Brothers
, The most famous US case based on the
facial tattoo of ex-boxer Mike Tyson. The artist who of the tattoo, Victor
Whitmill, sued Warner Brothers for copyright infringement in 2011 because he
claimed that the film studio featured his design in the movie 'The Hangover'
Part II and its advertising.
According to Whitmill, he drew Tyson's tattoo freehand directly on to his face
and it wasn't copied from anywhere, nor did Tyson bring in a design of his own.
Considering the nature of the design, there was an additional question of
whether this 'neo-tribal' work could be considered original in order to obtain
copyright protection. However, the US courts ruled that a work need not be
unique and that copyright protects specific expressions of concepts and ideas,
even if they are common ones.
The question of the ownership of Tyson's tattoo was later resolved because
Whitmill had the foresight to have Tyson sign an agreement stating that Whitmill
alone owned the rights to the tattoo but this didn't mean that Whitmill owned a
part of Tyson's face where the tattoo was drawn.
Even Whitmill's lawyer, noted that this was not a case about Tyson displaying
his tattoo but he said: When you apply a work of art to a visible part of a
person's body, whether a celebrity or not, there is an implied license that, so
long as that tattoo stays on that person, it becomes part of that person's
identity and that person can go wherever that person wants.
However, Whitmill's lawyer added that If you took the actual piece of art off
Mike Tyson, that's when you were making an unauthorised copy.
In its defence, Warner Bros. argued that the use of the tattoo design was a
parody, and therefore fell under the fair use defence under US law.
Later, Whitmill secured a financial settlement. Since then celebrities have
begun obtaining agreements of their own to ensure that the rights to their
tattoos do not raise problems of any kind.
The matter of tattoos, raises public policy concerns as it could allow the
artist to control his or her artwork, which will include the person on whom it
is fixed or drawn. For example, in this case only, if the tattoo artist is
granted the sole right to reproduce, prepare derivative works, distribute copies
and display publicly the tattoo, then professional boxer Mike Tyson will not be
able to appear in public without covering half of his face. And if Tyson does
not cooperate with the tattoo artist, he could be liable to pay monetary damages
to the artist. For a person like him whose significant income is derived from
public appearances, forcing him to relinquish such appearances could impact his
The 'NBA' Video Game Case
In the case of Solid Oak Sketches, L.L.C. v. 2K Games, Inc. and Take-Two
Interactive Software, Inc. , Take-Two and its subsidiary, 2K, gained massive
popularity because of its NBA 2K basketball video game series which is one of
the most successful videogames on the market. The game depicts a lifelike image
of various National Basketball Association (NBA) players, which includes their
tattoos too. Take-Two acquired the rights to use NBA players' names from NBA for
consideration of $1.1 Billion USD.
Solid Oak entered into license agreements with artists who inked up three NBA
players and claimed Take-Two had infringed their copyrights by publicly
displaying their works of art (tattoos) in NBA 2K video games. Solid Oak wanted
to impose an obligation on Take-Two and NBA players to get authentic permission
from them by paying license fees.
The court granted summary judgment on the following three grounds:
- De Minimis Use: The Court observed that the depiction of tattoo by
Take-Two was De Minimis meaning that the tattoos appear on only three
players out of four hundred. And, hence the tattoos are unidentifiable
because of the quick movements of players in the video game.
- Implied License: The Court observed that players had the indirect
license to use their own likeness as the artists knew that players would be
appearing in public and distributing their likenesses through different
media. Therefore, players allowed NBA and Take-Two to use their likeness and
their tattoos too, through both direct and indirect licenses.
- Fair Use: The Court also agreed that Take-Two fulfils all factors with
regard to fair use. The Court also opined, that the nature of use was
transformative, its use was different from the mere depiction of art on the
skin, but instead to depict the likeness of players precisely.
The UFC Video Game Case
In the case of Escobedo v. T.H.Q
, a tattoo artist sued THQ, Inc., the
makers of an Ultimate Fighting Championship (UFC) themed video game, for
copyright infringement. The artist tattooed a lion on fighter Carlos Condit's
torso, and claims that it was his original creation. The artist contends that he
created the original design, and owns a registration for the copyright to the
design. He claimed that by using the work in a video game, depicting Carlos
Condit, THQ infringed upon his copyright in the work.
THQ may have thought that the likeness rights that it held for Condit in order
to use him in the games would have covered such a possibility, but according to
Escobedo and his attorney, Condit himself didn't actually have the legal rights
to his own tattoo in the first place, and so was unable to allow the rights to
anyone else to use it.
People often believe that they own the images that are tattooed on them by the
tattoo artists, Escobedo's attorney Maria Crimi Speth explained in a press
release announcing the lawsuit against the video game studio. In reality, the
owner of the tattoo artwork is the only creator of the work, unless there is a
written assignment of the copyright in the tattoo art. In this case, there was
no such agreement between Escobedo and Condit, and as such, the tattoo belongs
to Escobedo only.
Later after a settlement, that tattoo was removed from the fighter and it would
never appear in the EA Sports "UFC" series that followed.
In a legal sense, it's the artists who have the copyright on their own unique
works regardless of the canvas that includes the human body.
The Nike Tattoo Case
Reed v. Nike, Inc , is often considered to be the first case to allege
copyright infringement over a tattoo. On February 25, 2005, Matthew Reed, a
tattoo artist in Oregon sued Nike and Rasheed Wallace, a NBA basketball player,
over Wallace's involvement in a Nike advertisement. The advertisement featured
two of Wallace's tattoos where he explained the meaning and creative process
behind each one. Reed claimed that Nike and Wallace had infringed upon his
copyrights without his permission and without even notifying him of the
In 1998, Reed, designed a tattoo for Wallace (the Wallace tattoo) and applied it
to Wallace's upper arm.
After the completion of the tattoo, Reed admitted to observing the Wallace
tattoo on Wallace during televised NBA games, but admitted that he expected this
public display of the Wallace tattoo and that such exposure would benefit his
In 2004, Reed became aware of a Nike advertisement, created by Weiden + Kennedy,
featuring Wallace. The commercial included a full screen representation of the
Wallace tattoo, a computerized recreation of the tattoo, and a voiceover by
Wallace describing the tattoo and its meaning. Upon discovering the
advertisement, Reed registered the pencil drawing that was the basis for the
Wallace tattoo with the Copyright Office and then brought his claim for
Reed's alleged that he was the owner of all right, title and interest to the
original artwork from which the tattoo on Mr. Wallace's arm was created. In his
first claim for relief, Reed alleged copyright infringement against both Nike
and Weiden + Kennedy for copying, reproducing, distributing, adapting, and
publicly displaying the Wallace tattoo without getting his permission. It should
be noted that while Reed's complaint alleges infringement of the Wallace tattoo,
the alleged infringement was actually of his initial drawings and not the tattoo
on Wallace's arm.
Reed's second and third claims for relief were alleged against Wallace
individually, wherein, he alleged contributory infringement against Wallace for
causing Nike and Weiden + Kennedy to believe that Wallace was the exclusive
owner of the copyrights in the Wallace tattoo and to subsequently infringe
Reed's exclusive rights.
In his third claim for relief, Reed alleged, in the alternative, that, if
Wallace was a joint author and therefore a co-owner of the copyright in the
Wallace tattoo, Reed was entitled to an accounting for profits obtained by
Wallace for the use of the Wallace tattoo in the Nike advertisement. Reed
requested damages from Nike, Weiden + Kennedy, and Wallace and also sought to
claim injunctive relief against Nike and Weiden + Kennedy.
However, the case was ultimately settled before going to trial.
One thing that seems clear with regard to the above cases is that tattoos are in
fact copyrightable assets. However, the equation is the scope and enforceability
of the freedoms to be given to the parties is in question. While the moral
rights such as promoting tattoos in the presence of tattoo artists and offering
them their privileges when due are certainly implied, the discussion to be laid
to the remainder is the statutory rights to be granted to either party.
The enforceability of these rights once they are given is still an issue that
requires attention. To safeguard and enforce these rights, we need a powerful
foundation that will identify the extent of damage that copyright owners can
seek without breaking the basic rights of the infringer. Since this is still a
relatively new concept and there are not many cases for there to be a set
precedent, there is still a substantial amount of grey area that is present.
It is observed that in India, there are not many cases that have taken place for
there to be a concrete decision on cases like this. In the U.S. and U.K., there
are comparatively a few more cases, but even they are not enough to set a
precedent. Since most of these cases are recent, there is not a judgement out as
well, not to mention that half of the cases do not even go to court and get
settled outside of it.
Well, there is still a long way to go in terms of understanding where tattoos
and tattoo artists stand amongst these provisions and in the society.
- Under US Code § 102(a)
- Solid Oak Sketches, Llc v. 2k Games, Inc., U.S. District Southern
District Of New York, No. 16-00724
- (S. Victor Whitmill v. Warner Bros. Entertainment Inc., No. 4:11–CV–752
(E.D. Mo. Apr. 28, 2011))
- Christopher Escobedo v. THQ Inc., 2:12-cv- 02470-JAT, U.S. District
Court, District of Arizona (Phoenix)
- Reed v. Nike, Inc., No. 05–CV–198 BR (D. Or. Oct. 19, 2005)
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