Introduction

Tim Parks, a renowned legal scholar, emphasized the importance of individual intellect and the need for copyright in a society that values individuality and creativity. Awareness and curiosity have led to rapid changes in technology and art forms, resulting in the emergence of various industries, including the tattoo industry. The tattoo industry, which has roots dating back to 8000 BC, has grown to become a billion-dollar industry. The legal framework for regulating and enforcing copyrighted tattoos is evolving, with concerns about adequate laws and the extent of these rights. The question remains whether tattoos are artistic enough to be copyrightable, who owns these rights, and how to enforce them. As the tattoo industry continues to grow, it is crucial to address these fundamental questions and ensure a fair and efficient legal system for the industry.

Tattoos can potentially be classified as artistic work under the Copyright Act, 1957 (“Act”). According to Section 2(c) of the said Act, artistic work encompasses various forms such as engraving, sculpture, painting, or photography. Given that tattoos are applied to human skin, they can be regarded as a "fixed tangible medium," in consonance with the Act's criteria for artistic work. Consequently, under Section 13(1) of the Act, any artistic creation in India can be copyrighted. This means that if a tattoo design demonstrates sufficient originality and is imprinted on physical media, it may be eligible for copyright protection. An example illustrating the application of copyright to creative works is the Registrar of Copyright granting film actor Shahrukh Khan the copyright to the letter 'D' for his film Don 2 in 2011. Therefore, the same principles could potentially extend to tattoo designs, provided they meet the requisite criteria for originality and fixation on a tangible medium. Though it seems there are no cases of disputes relating to copyright infringement in relation to tattoos in India yet, there exist many cases relating to the same in various other countries. 

Applicability and Extent of Copyright

To understand the applicability of copyrights to tattoos, it is essential to recognize that only original and custom-made tattoos are considered. Originality is the principal ingredient for copyright existence. In any case, tattoo artists' efforts in inculcating the imagination of the tattoo bearer ought to be given its due credit. If the copyrights of a tattoo remain in the possession of the tattoo artist, the rights to exploit the copyrighted "piece of art" also rest with them. Section 14(c) (ii) of the Indian Copyright Act, 1957, specifies that the copyright holder has the right to communicate the piece of work to the public.

In the defense of tattoo artists' rights to obtain the copyright, it may be argued that like painters, they too create art and have a right to copyright the same to retain their originality. The tattoo bearer may merely own the piece of art, and the copyrights of the designs may still rest with the tattoo artist. A certain amount of royalty could also be reimbursed to the artist for replication or incorporation of this piece of art on various mediums, such as video games, advertisements, movies etc. In the legal matter of Escobedo v. T.H.Q., THQ Inc., the creators of an Ultimate Fighting Championship (UFC) themed video game faced a copyright infringement lawsuit initiated by a tattoo artist. The artist had executed a tattoo of a lion on the torso of fighter Carlos Condit, asserting its originality and asserting ownership through a registered copyright. The artist argued that THQ's utilization of the tattooed work in the video game, depicting Carlos Condit, constituted an infringement upon the copyright he held for the design. THQ may have presumed that the likeness rights obtained for Condit to feature in the games would encompass such scenarios. However, Escobedo and his legal representative contended that Condit did not possess legal rights to his own tattoo, thereby lacking the authority to grant usage rights to others. Addressing a common misconception, Escobedo's attorney, Maria Crimi Speth, clarified that individuals often mistakenly believe they own the images tattooed on them. In actuality, the exclusive creator of the tattoo artwork is considered its owner unless there exists a written assignment of the copyright, which was absent in this case between Escobedo and Condit. Consequently, the tattoo's ownership vested solely in Escobedo. Subsequent to a settlement, the contested tattoo was removed from the fighter, precluding its appearance in the EA Sports "UFC" series that ensued. This case underscores the legal principle that artists retain copyright over their unique works, irrespective of the canvas, including the human body and the same ratio can be used as a precedents in India

Section 17 of the Act states that the creator of a work, including a tattoo artist, is the copyright owner. In the legal dispute ensuing from the film "The Hangover: Part 2", notable for featuring a character portrayed by Ed Helms awakening with a tribal tattoo resembling that of Mike Tyson, a copyright infringement suit was initiated by the original tattoo artist, S. Victor Whitmill. Having previously obtained copyright protection for Tyson's tattoo through the United States Patent and Trademark Office approximately eight years prior, Whitmill alleged that Warner Bros. impermissibly utilized his artistic creation without obtaining prior consent. Warner Bros., in defense, asserted that their use of the tattoo fell within the parameters of the "fair use doctrine." However, presiding Judge Perry dismissed this argument as "silly," emphasizing that the tattoo in question constituted an exact replica of Whitmill's original work. Despite Whitmill's plea for an injunction against the film's release being denied, the case did not progress to a formal trial, as both parties opted to settle the dispute for an undisclosed sum before reaching the courtroom. 

Reed v. Nike Inc., centered on the murky territory of tattoo copyright. While the specifics of the case remain shrouded in secrecy due to an out-of-court settlement, it highlights the ongoing discussion about protecting tattoo designs. Matthew Reed, a tattoo artist, created a design for NBA player Rasheed Wallace. The design's journey took an unexpected turn when it appeared in a Nike commercial featuring Wallace. Reed believed Nike's use of his artwork infringed on his copyright. Copyright law protects "original works of authorship," and tattoos can undeniably be creative. The outcome of Reed v. Nike remains unknown since copyright lawsuits can be lengthy and expensive, both parties might have opted for a swift, confidential settlement. While the details are undisclosed, the quiet resolution suggests an acknowledgment of Reed's claim.  The Reed v. Nike settlement, though shrouded in secrecy, serves as a reminder of the ongoing legal conversation on protecting the artistry etched onto our skin. 

Remedies

• Tattoo Artist’s Independent Contractor Agreement: This agreement is crucial for both the tattoo artist and the client. It should clearly outline:
  • Services: A detailed description of the tattoo design, including size, placement, and any specific requests.
  • Financial Obligations: This includes the cost of the tattoo, payment methods, deposit requirements, and cancellation policies.
  • Intellectual Property Ownership:
    • Default: By default, the copyright for the original tattoo design belongs to the tattoo artist as the creator.
    • Transfer of Ownership: The agreement can specify if the client wishes to purchase the copyright ownership of the design. This requires a written agreement outlining the transfer fee and any limitations on future use by the artist (e.g., using the design in their portfolio).
• Assignment under Section 18 of the Act:
  • Section 18 of the Act allows the copyright owner (usually the tattoo artist) to assign ownership of the copyright to the third party at the time of creation. This assignment should be a written document specifying the transfer and any conditions.
• Relinquishment of Copyright:
  • Section 21 of the Act allows the copyright owner (usually the tattoo artist) to relinquish their rights entirely. This is uncommon for tattoos as artists typically want to retain some control over their work.
• Granting a License:
  • Section 30 of the Act allows the copyright owner (usually the tattoo artist) to grant a license to the said third party. This means the artist retains ownership but gives the client permission to do specific things with the design, such as sharing photos online for personal use. The license agreement should clearly define the scope of permitted use (e.g., personal vs. commercial use) and duration of the license.

Conclusion

The evolution of technology and art, driven by individual intellect and copyright, has led to the emergence of diverse industries, including the tattoo industry. The legal framework for regulating copyrighted tattoos is still in its formative stages, raising questions about the artistic merit of tattoos, ownership of rights, and enforcement mechanisms. The Registrar Copyright Office's validation of tattoos as copyrightable works, such as film actor Shahrukh Khan's "Don 2" tattoo, supports the argument that tattoos should qualify for copyright protection. International cases like Escobedo v. T.H.Q. further emphasize the importance of addressing the rights of tattoo artists, as they retain copyright over their unique works. Section 17 of the Act also establishes the creator, including tattoo artists, as the copyright owner (usually the tattoo artist). Legal disputes, such as S. Victor Whitmill's case against Warner Bros., emphasize the need for protecting the tattoo artists' rights. Tattoo artists can choose various options for copyright ownership, such as independent contractor agreements, assignments, relinquishment, and granting licenses. Addressing fundamental questions surrounding copyright is crucial to establishing a fair and efficient legal system in the tattoo industry.

Endnotes

1. Christopher Escobedo v. THQ Inc., U.S. District Court, District of Arizona (Phoenix)

2. S. Victor Whitmill v. Warner Bros. Entertainment Inc.

3. (Nike Commercial)  https://www.youtube.com/watch?v=bXPhGf8Bi74

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