TATTOOS AS INTELLECTUAL PROPERTY- AN INDIAN PERSPECTIVE

INTRODUCTION:

Tim Parks in his book[1] wrote “You will only have copyright in a society that places a very high value on the individual, the individual intellect, the products of individual intellect.” In an overtly aware society like ours, there is no doubt that we not only value but are also more aware of our rights. In addition to our awareness, there is something else that is more peculiar about present times – our curiosity and our need to keep evolving with time. With this constant need for metamorphosis, our technology and art forms also are changing at a rapid scale, leading to the foundation and formation of various industries emerging from them including the Tattoo industry. This body graphics phenomenon, while may seem to have gained popularity very recently, has its roots inked all the way back in CA. 8000 BP where a ‘moustache’ was found tattooed on the upper lip of the South American Chinchorro mummy[2]. With the tattoo industry growing to become a $1 Billion industry[3], the legal framework to regulate this industry seeks evolution as well. With tattoos, the questions that need to be put to rest seem quite fundamental, beginning with – Do we have adequate laws and the legal framework to regulate and enforce the rights relating to tattoos? Are tattoos artistic enough to be copyrightable at all? If yes, who owns the rights? What is the extent of these rights? How do we enforce them?

This article tries to explore the answers to these questions while making an attempt to understand tattoo related jurisprudence across the world in comparison with current legal framework in India and its possible interpretations.

TATTOO – A COPYRIGHTABLE WORK?

Since copyrights are rights granted to artistic forms of expression on tangible mediums, tattoos ought to qualify, for copyright protection. Unlike in U.S. where the applicable statute[4] requires the “pictorial, graphic and sculptural” copyrightable work to be “original works of authorship fixed on a tangible medium of expression”, Indian law does not explicitly specify the need for tangible medium of expression. However, owing to the permanent nature of the tattoos and the human body being the “tangible medium of expression”, the reservations against tattoo not being copyrightable work, by definition, should be ruled out.  As if to prove Indian Copyright Office’s validation of tattoos as copyrightable works, the Indian Copyright Office, in 2011, granted Shahrukh Khan a copyright registration for his tattoo[5]. While there has not been a copyright infringement case for tattoos as yet in India, the news of the Warner Bros. making use of an unauthorized tattoo in their movie Hangover 2 in 2011 and then, being sued by the tattoo artist from Missouri[6] made quite a stir and has had the legal community thinking of the ramification of making the tattoos a copyrightable commodity. Though the case was discreetly settled, the million dollar question is still being debated as to who shall reap the benefits of the tattoo and can the standard injunctive damages apply, as they apply for paintings, books or other works of art.

To understand the applicability of copyrights to tattoos, one must recognize that it is only original and custom made tattoos that are the subject of this discussion. Standard tattoo in catalogues or on the walls of parlours are not to be considered thereto. Of all the ingredients, originality is the principal ingredient, without which a copyright does not exist. Having said that, the efforts made by the tattoo artists in inculcating the imagination of the tattoo bearer are worth marvelling about, it must be understood that if the copyrights of a tattoo are to remain in the possession of the tattoo artist, the rights to exploit the copyrighted ‘piece of art’ also rests with them. Among the various other rights of the copyright holder mentioned in the Indian Copyright Act, 1957, Section 14(c) (ii) 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 speaks of ‘artistic work’ only implying that tattoo artist is entitled rights only of the “artistic work” i.e. the tattoo bearer’s body that has been imprinted with the tattoo while allowing the artist to restrict the replications of the artistic work in any other medium under Section 14. Thus, one may imagine the way in which a copyright holder, in this case the tattoo artist may incorporate the above mentioned right, considering that the ‘work of art’ which is to be communicated to the public is actually on somebody else’s body, unless the tattoo artist has tattooed himself. In other words, it may mean that the tattoo artist has the right to control and regulate the tattoo bearer’s activities which, by all means, violates the very right to freedoms promised to us by Art.19 and Art.21 of the Indian Constitution, to say the least. Another argument in the favour of the tattoo bearers holding the authorship rights is that the tattoo artist is a hired employee, in which case, S.17(c) of the Indian Copyright Act, 1957 may be interpreted as the tattoo bearer being a quasi-employer of the tattoo artist, is the first owner of the copyright, in the absence of a contract between the two. In practice, most tattoo artists, too, believe that once the customer pays for the tattoo, he owns the tattoo and all the rights that come with it.

In the 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 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 incorporation of this piece of art on various mediums such as video games, as in case of THQ Inc.[7], where the gaming company was sued by Mr. Conduit’s tattoo artist for illegally and wrongfully using the mixed martial artist’s tattoo in the game. Taking a leaf from so many cases of tattoo artist’s suing gaming[8] and entertainment companies[9], and also having burnt its fingers once[10], EA Games played it safe by taking permission from the tattoo artists of the respective sportsmen before using their work in their new NFL 15[11].

TRADEMARKING TATTOOS :

Quintessentially, the function of a trademark is to distinguish one’s services or goods from the others selling or providing similar goods or services. So when one gets a trademark or logo tattooed on himself or herself, given the aforesaid logic, the chances of them intending to confuse any member of the public of being the originator of any particular goods or service are rare. However, in some organizations, employees are encouraged to get tattoos of the organization’s logos or taglines[12].

On the other hand, in some cases, one might end up welcoming a cease and desist notice for tattooing a trademark without prior permission, like in the case of a coffee shop owner in New York who was slapped with a cease and desist notice for infringing the trademark “I ♥ NY” for tattooing “I [coffee cup] NY” on his knuckles. [13] The coffee shop owner, in this case, to avoid litigation, settled and agreed to certain terms of the said rightful owner that included restrictions on having his tattooed knuckles photographed and censoring of the cafe’s logo, which happened to be the tattooed knuckle, from the window pane of his coffee shop. While it is essential to note here that not only was there no direct trademark infringement but also the coffee shop owner had not copied the design of the logo as it is. He had introduced the image of a coffee mug instead of the “♥” which could be proved as distinctive form of expression and could have stood his ground pointing the difference in the tattoo design from the allegedly infringed logo. Having said that, like the idiom “every coin has two sides”, every legal argument can be fought from both the sides as well, making this jurisprudence ever so interesting.

CONCLUSION:

There seems to be crystal clarity, with the Warner Bros. case[14] verdict and Shahrukh Khan’s tattoo[15] being granted copyright registration, that tattoos are indeed copyrightable property. The variable in the equation, however, is the extent of the rights that are to be granted to the parties and its enforceability. While the moral rights like endorsing the tattoos in the name of the tattoo artists and giving them their credits when they are due, are undoubtedly implicit, the debate that needs to be put to rest is the statutory rights that are to be bestowed on either party.

Another question that needs the legal community’s immediate attention is the enforceability of these rights once they are granted. In order to protect and execute these rights, we are in need of a strong precedent that will define the limit the extent of injunctive relief that may be sought by the copyright holders without violating the infringer’s fundamental rights. With a Catch-22 situation before us and no binding precedent to break this deadlock, one can see only two definite possibilities – either the tattoo artists are granted their much earned and awaited royalties for every picture, endorsement, and social media coverage given to their art, or the conscious tattoo bearers is to carry fresh, newly drafted contracts for their tattoo artists to have their rights assigned to them every time they enter a tattoo parlour!

Author: Amruta Mahuli, Legal Associate at Khurana & Khurana, Advocates and IP Attorneys. Can be reached at mumbai@khuranaandkhurana.com.

References :

[1] Where I’m Reading From: The Changing World of Books

[2] https://www.researchgate.net/profile/Aaron_Deter-Wolf/publication/275023614_The_Material_Culture_and_Middle_Stone_Age_Origins_of_Ancient_Tattooing/links/552ecd7f0cf2d495071a90b1/The-Material-Culture-and-Middle-Stone-Age-Origins-of-Ancient-Tattooing.pdf?origin=publication_detail

[3] https://www.ibisworld.com/industry-trends/specialized-market-research-reports/consumer-goods-services/personal/tattoo-artists.html

[4] 17 U.S. Code § 102

[5] http://archive.indianexpress.com/news/srk-registers-don-2-tattoo-in-his-name/817871/

[6]  S. Victor Whitmill Vs. Warner Bros., Civil Action No. 4:11-cv-752

[7]  Christopher Escobedo v. THQ Inc., Case No.: 2:12-cv- 02470-JAT, U.S. District Court, District of Arizona (Phoenix)

[8] Solid Oak Sketches, Llc V. 2k Games, Inc., U.S. District Southern District Of New York, No. 16-00724.; http://mitchellhamline.edu/wp-content/uploads/sites/37/2015/11/2-Copyrighting-Tattoos-Artist-vs.-Client-in-the-Battle-of-the-Wai.pdf

[9] Reed v. Nike, Inc, No. 05-CV-198 BR (D. Or. Feb. 10, 2005); http://www.brinksgilson.com/files/190.pdfl; Ibid. 5

[10]  Stephen Allen v. Electronic Arts Inc. et al., Case No.: 5:12-cv-03172, in the U.S. District Court for the Western District of Louisiana.

[11] http://www.barstoolsports.com/dmv/ea-sports-got-permission-from-colin-kaepernicks-tattoo-artists-to-use-his-ink-in-madden-15/;

[12] http://newsfeed.time.com/2013/05/02/employees-get-tattoo-of-company-logo-for-pay-raise/; http://www.bbc.com/news/business-28207945

[13] http://theconversation.com/who-owns-your-tattoo-maybe-not-you-56050

[14] Ibid. 4

[15] Ibid. 3

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