The Tattoo Conundrum – Copyright and Publicity Rights at Crossroads
October 2, 2021
The history of tattoos is as fascinating as the art form itself; Europeans first saw locals with these permanent tattoos on their bodies while on expeditions to find new countries. These eventually became fashionable in Europe and were later utilized by criminals and the judicial system to mark offenders with tattoos as a means of punishment and humiliation. Later, tattoo became a symbol of freedom of speech, and it is now nearly the rule rather than the exception. Tattoos are, at the end of the day, a piece of art and an expression of the artist, with the canvas being a person’s skin.
Tattooing has been used on people all across the world since the Neolithic period, as shown by mummified preserved skin, archaeological documents, and ancient art. If we look at the history of tattooing in India, we can see that before 1980, permanent tattoos were quite popular in South India, particularly in Tamil Nadu. Permanent tattoos were known as Pachabottu or Pachakuthu in that region of the country. Permanent tattoos are known as Godna in Northern India. Tattoos have long been utilized as cultural markers in India, both among the large tribal community and the broader Hindu population. Many young Indians are getting religious and spiritual tattoos these days.
The first question to ask is whether tattoos are considered creative work under the Copyright Act of 1957 (“Act”). Paintings, sculptures, drawings, engravings, and photos are all considered creative work under Section 2(c) of the Act. Tattoos engraved on human skin (a ‘fixed palpable medium’) meet the Act’s legislative criterion of being an artist’s work. As a result, any artistic creation in India may be copyright protected under Section 13(1) of the Act.
Do you know that the Registrar of Copyright gave Shahrukh Khan the letter “D” in his name for his film Don 2 in 2011? As a result, any tattoo design that demonstrates sufficient originality and is placed on a physical medium can be protected by copyright.
Artistic work is defined as “a painting, a sculpture, a drawing (including a diagram, map, chart, or plan), an engraving, or a photograph, whether or not any such work contains artistic merit,” according to the Indian Copyright Act. In the case of an artistic creation other than a photograph, the author is the artist. Returning to tattoos, they are works of art that resemble a painting, sketch, or engraving. As a result, a tattoo qualifies as an ‘artistic work.’ Unlike in the United States, the Indian Copyright Act makes no reference to a canvas. Publication of the work entails making the work visible, audible, and readable to the general public. As a result, a tattoo is a creative work that is made by the creator and released. As a result, it may be protected by Section 13 of the Copyright Act.
Can Tattoo be copyrighted?
When it comes to copyright ownership, Section 17 of the Act stipulates that the creator of the work is the owner of the copyright. As a result, in the vast majority of cases, the tattoo artist will be the owner of the copyright. Yes, even if the tattoo is on your flesh, the tattoo artist who created it is still the owner.
Despite the fact that India is devoid of lawsuits involving tattoo copyright violation, However, in the case of S. Victor Whitmill v. Warner Bros., a tattoo artist from Missouri sued Warner Bros. for illegal use of Mike Tyson’s tattoo in the film Hangover II. Tyson’s tattoo artist is a USPTO-registered trademark. From the judge’s hearing, it appears that the judge felt that tattoos may be copyrighted. Warner Bros. also claimed that a tattoo was used as a parody, but the Court held that a tattoo portrayed an exact reproduction and so could not be simply labeled a parody as it appeared.
Copyright Protection v. Fundamental Human Right Protection to get a Tattoo
Because there is no specific legislation pertaining to tattoos and there are few court precedents, there is a perplexing dichotomy between who owns the copyright and an individual’s basic freedom. The tattoo artist owns the copyright in that tattoo, as we’ve already established. As a result, he has moral rights such as the right to integrity, which allows him to prevent the tattoo bearer from changing, amending, or otherwise harming the tattoo artist’s reputation.
This, in turn, has a detrimental influence on the tattoo bearer’s human rights. If the tattoo artist is given total protection, it will have serious repercussions for the tattoo bearer’s human rights, but completely rejecting the tattoo artist’s right will deter them from exhibiting their talent. As a result, the problem must be examined from this angle as well.
The right of publicity is commonly recognized as a type of intellectual property right that protects a person’s name, likeness, or other indicators of personal identification from being misused. Despite the fact that publicity rights are not established in India, there have been numerous cases involving them. The court concluded in ICC Development v Arvee Enterprises stated publicity rights originate from the right to privacy and are inherent in an individual or “any indicators of an individual’s identity like his name, personality feature, signature, voice, and so on.”
“The right of Publicity belongs in an individual, and he alone is allowed to profit from it,” the Court continued. For example, if someone used Kapil Dev or Sachin Tendulkar’s name, persona, or image in connection with the ‘World Cup’ without their permission, they would have a genuine and enforceable cause of action.” Many Courts have now recognized and embraced this interpretation of publicity rights, simulating the common law protection against passing off. In the case of D.M. Entertainment v. Baby Gift House, it was held that publicity rights included the ability to allow or prohibit the commercial use of one’s appearance or personality traits.
In the Puttaswamy case, Justice Kaul stated, “The right of publicity implicates a person’s interest in autonomous self-definition, which precludes others from interfering with the meanings and values that the public connects with her,” when addressing personality rights. As a result, an individual has the exclusive authority to approve the commercial use of his appearance or other personal characteristics. This is when the copyright issue comes into play.
Copyright v. Publicity Right
What happens when a copyright-holding tattoo artist sues a celebrity for infringing on his tattoo rights? While Indian courts have yet to see such cases, they are not uncommon in the United States. Reed v. Nike and Escobedo v. THQ are two examples of this. If tattoo artists were to be granted copyright over their designs in India, either fully or as joint authors with the tattoo bearer, their rights under the Copyright Act would conflict with the latter’s publicity rights.
Six economic rights in artistic work are provided under Section 14(c), including the right to transmit the work to the public, reproduce it, issue copies, and alter it. Any effort by the tattoo artist to exercise these rights would be a violation of the individual’s own publicity rights. Even if the tattoo artist assigns or licenses her rights to the tattoo bearer, the latter potentially enjoys publicity rights on it, implying that the celebrity is paying royalties to enjoy what is, in reality, her own.
Question of Moral Rights
Apart from economic rights, a work’s creator has moral rights, which are outlined in Section 57 of the Indian Copyright Act. The right to integrity is one of the most important moral rights given to an author under Section 57. If any distortion, mutilation, alteration, or other conduct in connection to work is detrimental to the author’s honor or reputation, the author can sue.
In the case of Raj Rewal v Union of India, there was a contradiction between moral rights and constitutional rights (covered on the blog here). In this case, an architect sued to have a building he built demolished, arguing that the loss of his creative corpus was damaging to his image. The court dismissed the claim, ruling that what cannot be seen cannot have an impact on the author’s reputation. The first thing to take away from Raj Rewal is that because Section 57 does not specifically prohibit removal, it cannot restrict a tattoo bearer from hiding or erasing his tattoo entirely. This raises another important question: what additional activities would be banned under Section 57(1)(b)? Is it possible for a celebrity to change her tattoo?
Raj Rewal also responds to this query. Unlike all other copyrighted works, architectural work is linked to land, which is a property in its own right and entitles its owner to the right to property, according to the Delhi High Court. The right to property, which is established in Article 300A of the Constitution of India, prevails above moral rights, which are purely statutory.
Personality/publicity rights and privacy rights are considered two sides of the same coin in India. In Retd. Justice K.S. Puttaswamy v. Union of India, the Supreme Court raised personality rights to the status of a fundamental right under Article 21. Section 16 of the Copyright Act, on the other hand, proclaims the legislation to be the exclusive source of copyright. Using the Raj Rewal principle, it is reasonable to conclude that publicity rights will always trump the tattoo artists’ moral and economic rights under the Act. Due to the existing state of the law in India, a tattoo artist holding copyright over his designs would be unable to enforce them.
It is reasonable to assume that tattoos are creative works under Section 2(c) of the Act and that the tattoo artist owns the copyright under Section 17 of the Act. In the absence of a formal agreement with the tattoo artist on ownership of the copyright, the tattoo bearer might acquire the copyright in one of the ways described above.
Despite our finding, the law governing tattoos and their copyright remains murky, as the majority of high-profile cases involving this subject have been resolved out of court. So, the next time you go to a tattoo shop, don’t just look at the design, reputation, and safety, but also be sure to read the artist’s or tattoo studio’s stated terms and conditions. It’s critical to have a conversation about intellectual property rights. If you are someone who spends a lot of money, effort, attention, and sweat on tattoos, you should always get legal advice before being tattooed. It is especially important for celebrities, as tattoos are regarded as an integral part of their image and brand.