Can Tattoos be Copyrighted?
Although the law of copyright is a well-established field, there are a handful of innovative and new sub-categories that come up for consideration now and then before the legislature and judiciary. Due to an ever-changing, quickly developing society, new areas grow and become predominant enough to create unanticipated issues, which the law catches up with then. One such incredibly notable example is that of tattoos. Tattoos have become exceedingly common, and their continuous widespread growth has brought attention to the relevant legal implications. The person who is wearing the art is not the one who created it. While people often adorn themselves with jewelry, wearing a tattoo is different from wearing a bracelet or ring. Jewelry is easily removed, while a tattoo is a permanent and fixed mark on the skin. In recent times, tattoo artists have brought lawsuits alleging Copyright Infringement of their works. However, the law on the copyrightability of tattoos remains unsettled due to the lawsuits being either settled out of court or dismissed.
Copyright Law grants protection to original works of authorship fixed in any tangible medium of expression. For understanding whether tattoos are copyrightable, the statutory basis of the copyright law needs to be understood.
The first requirement of copyrightable subject matter is fixation, which requires a work of authorship to be ‘fixed’ in any tangible medium of expression. The medium in which the work is fixed is irrelevant as the copyright law was intended to encompass a broad scope of mediums of expression from paintings on canvas to software to architectural works.
Copyright can only be granted to original works of authorship. Generally, it is understood that the level of creativity required is low. (In the US, Feist vs. Rural established this position). Thus, it can be said that tattoos are original works of authorship that are fixed in a tangible medium of expression, i.e., the skin here.
Usually, the right of ownership rests with the creator of the work. Most experts agree that a tattoo artist offers his or her client an implied license to display the copyrighted work, but that license does not necessarily include all of the rights afforded under copyright laws. The client may not have the right to make reproductions or derivatives of the tattoo without the artist’s permission. This position is prevalent largely in the US.
In the United Kingdom, if the person is getting a tattoo that is not his or her original design, the ownership would lie with the tattoo designer with no provision of ‘fair use’ to rely upon.
In India, the first owner of the copyright is the author of the work (in this case, the tattoo artist). The Indian Copyright Office showed its approval for recognition of copyright on tattoos when it granted a Copyright Registration to Shahrukh Khan for a tattoo, which he sported in one of his films, thus showing that the person getting the tattoo can also be the owner of the copyright.
However, a crucial question that comes up in regards to ownership is, what about the works that are made for hire? In the case of tattoos, the consumer ‘hires’ the services of the tattoo artist to create the work for him or her. Sometimes, the design may be the customer’s design, and other times, it could be a result of joint inputs by the tattoo artist and the customer, and sometimes it is simply the tattoo artist’s design. These scenarios make it very difficult to answer questions about ownership. The law regarding ownership of tattoos is not definite primarily because there is no statute or judgment to seek guidance.
In defence of the tattoo artists’ rights to obtain the copyright, it may be said that like painters, they, too, create art and have a right to copyright the same to retain their originality. Also, as in the case of art collectors, the tattoo bearer may only own the piece of art, and the copyright may still rest with the tattoo artist, and royalty may be paid to the artist for replication, further sale, or incorporation of this piece of art on various mediums. It can be argued that if you design the tattoo yourself, then you own the copyright, as the artist simply tattooed your design onto your skin. However, if you commission a tattoo artist to create a custom design for you using your ideas, the copyright ownership is unclear. It would likely be joint ownership based on previous cases relating to other types of art.
Tattoos and Copyright Infringement
Based on current legislation, some tattoos could infringe on copyright. Usually, the copyright holder must prove that the copied work harms the work’s value or potential market. A tattoo artist who inks a cartoon character onto a client without obtaining permission from the original illustrator may be infringing by affecting the potential market of the character. The illustrator could sell drawings to tattoo parlours for use on clients. On the other hand, the client is less likely to be considered infringing since his display of the work is usually not for profit and, in most cases, would not affect the work’s value or market.
The issue of the copyrightable nature of tattoos gained attention because of the movie Hangover Part II in 2011. One of the characters of the movie had a replica of the famous Mike Tyson face tattoo. The tattoo artist had already registered the design with the US Copyright Office and hence, sued Warner Bros. for copyright infringement. Although no decision was ultimately passed in this case, in her comments, Judge Perry supported the rights of the tattoo artist and stated that a tattoo could be subject to copyright if it is an original work of authorship. She also refused to accept Warner Bros’ strong contention claiming the use of tattoos as a parody. According to her, the tattoo depicted a replica and thus couldn’t be called a parody just because it got featured in a comic film.
Though it may fall in the category of fair use in the case of private users, the usage becomes commercial when replicated by a company or when the design is worn by a celebrity, and thus, may lead to infringement.
Licensing of Tattoos
Copyright ownership in works can be transferred in whole or in part. In a tattooing context, a tattoo artist may grant a client the right to display his or her copyrighted design, but not the right to reproduce or the right to adapt the design. Licensing of one right does not inherently grant the client the ability to exercise any other right of Copyright Protection.
The law regarding tattoos and their copyright is still ambiguous. To date, all the high-profile cases regarding the issue have been settled out of court, implying initiating the conversation but leaving everybody without any definite conclusion.
In a time where Intellectual Property Rights (IPRs) are getting recognized; and artists are given due credit for their work, there is no reason to exclude tattoo artists from enjoying the benefit of these acts. Many tattoo artists are getting their original works registered, but due to the lack of specific legal guidelines, the extent of their implementation remains questionable. Copyright law should reward tattoo artists for unique and original designs. Eventually, the goal of the Intellectual Property (IP) law is to promote the progress of science and arts. Of course, as with all other artists, the tattoo ought to meet the originality requirement to qualify for Copyright Protection. Many tattoo artists use original designs for their clients instead of reproducing an already existing image, as copying is discouraged and frowned upon in the tattooing industry by other tattoo artists. These artists believe in furthering their creative designs. If the artist created these designs through ink on paper rather than ink on skin, one would have little doubt that the work warrants copyright protection and that the artist is entitled to rights under the law. So, should the tattoo artist’s choice of medium bar him or her from enjoying the rights that usually attach to the original works of authorship? Well, clearly not. The cases of Warner Bros. and Shahrukh Khan being granted copyright in tattoos are undoubtedly a step forward in recognition of tattoos as copyrightable property. However, some issues that still need clarity are the ownership of tattoos and the enforceability of rights once they are granted. It could either be that tattoo artists are granted royalties for each picture, endorsement, social media coverage, etc., or the customers could enter into contracts that assign copyright ownership assigned to them every time they get a new tattoo. With the popularity of tattoos, the courts are bound to address these issues with more clarity in the coming times. ✅ For more visit: https://www.kashishipr.com/