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Copyright and Tattoos- who owns your tattoo?

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[1] 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 ruled out.

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.

Infringement

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 copyrighted work.

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 infringement.

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:
  1. 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.
     
  2. 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.
     
  3. Relinquishment:
    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 Copyrights.
     
  4. License:
    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.

Merchandising

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.[2] Thus, copyright may not apply at all unless merchandising is limited to extremely limited editions of products.

Mike Tyson's tattoo Case

Whitmill v. Warner Brothers [3], 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 earnings.

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. [4], 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 [5], 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 [6], 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 advertisement.
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 business eventually.

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 infringement.

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.

Conclusion
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.

References:
  1. Under US Code 102(a)
  2. Ibid
  3. Solid Oak Sketches, Llc v. 2k Games, Inc., U.S. District Southern District Of New York, No. 16-00724
  4. (S. Victor Whitmill v. Warner Bros. Entertainment Inc., No. 4:11CV752 (E.D. Mo. Apr. 28, 2011))
  5. Christopher Escobedo v. THQ Inc., 2:12-cv- 02470-JAT, U.S. District Court, District of Arizona (Phoenix)
  6. Reed v. Nike, Inc., No. 05CV198 BR (D. Or. Oct. 19, 2005)

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