Over the past several decades, we have seen youth's willingness to get inked, 'tatts' as the lingo goes. With this growing popularity, there was a dire need to protect the work of an artist who has put his heart and soul into the work. It is a settled principle that tattoos are eligible to receive copyright protection as they satisfy the 'originality' requirement under the Indian Copyright Act, 1957 (Copyright Law). But have you ever wondered who owns your tattoo? Or What happens when the tattoo artist copies pre-existing work of another artist? THINK BEFORE YOU INK!
My body, my rules? Nope! Not always
Yes, your body and your decision to get inked does not make you the owner of that tattoo on your body. Copyright ownership belongs to the creator of the art i.e., the tattoo artist. The copyright holder has multiple rights under copyright law and one such right is the right to communicate this work to the public. This implies that the tattoo artist has the right to control and manage the tattoo which is inked on your body.
Let us now evaluate how this infringes other rights available to the tattoo bearers:
Economic Rights vs. Publicity Rights
The author of the work is provided certain economic and moral rights under Copyright Law but does that mean that tattoo artist will be the one taking calls on how the tattoo will be used or if the tattoo will be used for commercialization? Tattoo artist's economic right conflicts with the publicity right of an individual. Publicity right is the right to control the commercial usage of name, likeness, or other indicia of personal identity. Right of publicity stems from the right of privacy. Do you know that Amitabh Bachchan's personality rights i.e., his photo, voice and name cannot be used without his permission?
Tattoo artist's attempt to exercise their economic rights may infringe an individual's, more particularly a celebrity's right to publicity. In such cases, the parties execute an assignment agreement pursuant to which all the rights, titles and privileges related to the work are assigned to the tattoo bearer. But what about moral rights which cannot be assigned or transferred?
Moral Rights vs. Publicity Rights
The moral rights i.e., right to authorship, integrity, disclosure, retraction available to an author are non-transferable, even if contractually agreed between the parties. Moral rights of an artist and the publicity rights of a celebrity are overlapping and there is no jurisprudence set to demarcate the two rights. The clash between publicity and moral rights in the context of copyright for tattoos highlights the multifaceted nature of intellectual property law in the digital age. While copyright law provides creators with certain protections, the uniqueness of tattoos as both art forms and personal expressions blurs the lines of ownership and control.
Given the above, it is advisable for the parties involved to engage in open dialogue and clear contractual agreements to navigate these uncharted waters effectively. Ultimately, the intersection of copyright, publicity, and moral rights in the world of tattoos in India underscores the importance of balancing artistic freedom, personal expression, and legal protection in our ever-evolving creative landscape.
Copying of copyrighted designs by the tattoo artist
Will a pre-existing painting or picture inked by a tattoo artist be considered as 'original' and thus be eligible for copyright protection? The common example here is inking of a Disney character. Not only are the characters copyrighted but they are trademarked as well. Usually, big companies like Disney issue licenses to permit use of their copyrighted material. Failure to obtain such permission will lead to a copyright infringement suit. An argument in favour of the tattoo artist is that even though the designs are copied, the tattoo artist has put in hard work and efforts. This additional effort and hard work would likely bring in an element of originality into the work as to ink a picture on a human body requires some amount of skill.
In this situation, tattoos may be considered as derivative works. Derivative works are based on pre-existing creations but are transformed, adapted or modified in a manner that infuses originality into them and the additional creativity makes such derivate work eligible for copyright protection.
But what happens when a tattoo artist takes inspiration from a pre-existing picture/ photograph and transforms it into a tattoo. Will the tattoo artist be able to take the de minimis defence? De minimis defence is used when the infringement is so insignificant that they are not worth making a note of by the judicial authorities. There are no existing judicial precedents on similar facts in India or abroad. However, we can draw our inference from a case in 2016, wherein a tattoo company sued a gaming company for copyright infringement based on the company's depiction of Lebron James' tattoos in the game and cover art for the game. It was held that that the company could not be sued for copyright infringement over the use of player's tattoos in its NBA 2K video game since the tattoos of famous athletes are likely to be displayed in public, and the players are granted a non-exclusive license to use the tattoo as part of their likeness, basically right to publicity. In addition, the court found the use to be de minimis and transformative fair use. Applying the de minimis and transformative fair use principle to the above example where the tattoo artist has just taken an inspiration from a copyrighted work, the tattoo artist's defence of de minimis and transformative fair use may be accepted depending on the other facts of the matter.
Considering the unimaginable medium of expressions coming into play, it is imperative for the Government to come up with an amendment to the copyright law which encompasses different forms of expression and a mode to protect the rights of the author and balancing the constitutional rights available to an individual. As legal precedents are set and new regulations emerge, the complexities surrounding copyright in tattoos in India may find resolution, offering clarity and guidance for all parties involved.
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.