Copyrightability of tattoos in India : Takeaways from the United states

7th March, 2025 - 5:58 am Categories: Copyright 0 Comments

What form of Intellectual property are tattoos? Copyright? Trademark? The predominant answer is copyright. The issue of copyright of tattoos in India is at its infancy stage as it becomes more mainstream among the urban market. Tattoos might seem like a novice industry but it generates Rs.20,000 crores every year as reported in 2020. The industry’s Intellectual property claims could have a huge impact in the law surrounding copyright and personality rights.

Legislative and Judicial  basis for copyright of tattoos

Under Section 2(c) of the Indian Copyright Act, tattoos fall into the category of artistic works because they are drawings or engravings, and they get protection according to Section 13, with Sections 40 and 41 superseding the same for foreign jurisdictions. Section 17 states that unless there is a contrary agreement, ownership vests with the tattoo artist if he is an employee or apprentice of a parlour; however, an independent contractor never loses ownership irrespective of being affiliated with a parlour.

To qualify for protection, a tattoo must cross the threshold of originality, reflecting the “flavour of minimum creativity,” a blend of the doctrines of “sweat of the brow” and “modicum of creativity” established in Eastern Book Company v. D.B. Modak. Unlike the stricter U.S. standard, India requires that tattoos exhibit some skill and knowledge in their creation. Generic tattoos, catalogue designs, or direct copies of common images have no copyright status unless they qualify as original and creative enough.

Major clashes in the copyrightability of tattoos.

Copyright of the Artist v. Personality rights

In India litigation on copyright of tattoos have not been active in courts but actor Shahrukh Khan was successful in obtaining a registered copyright of  the letter ‘D’ to represent his movie ‘Don’ so potential of litigants is plausible. But here the copyright was provided to the person on whose body it was inked and not the artist, it could be argued that the tattooed person contributed to the creation of the particular tattoo.

But how far does the protection of the copyright of the tattoo extend to, does it include the procurement of permission to display the tattoo in public spaces such as social media, but that would amount to infringement of bodily autonomy and personal freedom guaranteed in Article 19 and 21 of the Constitution of India

Tattoos become a part of a person in a permanent medium but they also become a part of their likeness so,would  the tattooed person be only allowed to display their tattoo if they contribute to the design. There have been no litigants yet on this aspect but the US jurisdiction has had a few famous rows on this aspect such as the Reed v. Nike Inc., tattoo artist Matthew Reed brought an action against Rasheed Wallace for copyright over a tattoo Reed designed for Wallace. Reed argued that Wallace allowed Nike to use the design in commercials without his consent. Reed further alleged contributory infringement on Wallace’s part when Wallace asserted sole ownership of the copyright to the tattoo. Reed sought damages in the form of a share of the proceeds of the Nike commercial featuring the tattoo. The case was settled out of court, avoiding a trial.

Copyright of Artist v. Display of likeness in media

Copyright infringement cases over tattoos bring to the forefront the conjoint but distinct theories of intellectual property and personality rights. The case of Ricky Williams had even tattoo artist Stephen Allen suing Electronic Arts for using his tattoo in a video game without permission, thus questioning copyright protection for tattoos, though such a claim was eventually dropped. Another example is the lawsuit filed by Christopher Escobedo against THQ, Inc. for using the image of Carlos Condit’s tattoo in a video game, which he dropped after the bankruptcy of the defendant, with the claim remaining at $22,500. In 2011, S. Victor Whitmill, the artist who created the famous facial tattoo of Mike Tyson, sued Warner Bros. for using the same design in The Hangover 2. The case was settled out of court, meaning there was no judicial ruling. These cases underscore the complex legal landscape surrounding tattoo copyrights and their usage in media.

The court held, in Solid Oak Sketches, LLC v. 2K Games, Inc., that tattoos in the video game NBA 2K qualified as fair use because of four salient factors:

1.  Purpose and Character: Tattoos, created initially for self-expression, were incorporated to make the players more identifiable. The incorporation was ancillary, as tattoos appeared on 3 of 400 players and accounted for less than 0.000286%–0.000431% of the data in the game.
2. Nature of the Work: The tattoos were factual rather than creative, based on common motifs or photographs, and already published.
3. Amount Used: Although entirely copied, the tattoos were necessary to accurately depict the players.
4. Market Effect: No market for licensing the tattoos was harmed or even demonstrated to exist.

This ruling made clear fair use application to tattoos, especially in media and video games.

Jeffrey Sedlik v. Kat Von D Row.

This was a Jury verdict which has a substantial position of good law. The main clash is that are tattoos their own form of copyright even if they are converted into tattoos from another medium of copyright (such as a photograph)

Background

Jeffrey Sedlik sued Kat Von D, also known as Katherine Von Drachenberg, in 2021 for taking a tattoo created using Sedlik’s iconic photograph of Miles Davis of a friend and tracing a line drawing and stencil from a print of the portrait to transfer the image onto his arm before painting it freehand. Sedlik brought suit for copyright infringement and filed summary judgment motions against the defendants who argued that his tattoo qualified for fair use but also filed summary judgment motions.

Verdict

On trial, Kat Von D testified that the tattoo industry usually does not get licenses for copyrighted works as it is equivalent to “fan art.” In this case, she also asserted that she didn’t get any payment for that particular tattoo; she didn’t also earn through the social media posts about that tattoo and the creation of that very tattoo. This argument attempted to differentiate her claim from the case of Warhol, arguing that the purpose of her tattoo was neither commercial in nature nor identical to Sedlik’s intent at the time of taking the Miles Davis photograph.

Sedlik submitted a “hypothetical-license damages” approach, the award that would have been reasonable between a willing buyer and willing seller at the time of infringement, but he made no demand for particular damages nor brought an expert on damages to testify.

The jury reached a verdict in favor of Kat Von D. They concluded that the fair use protected her social media posts on the tattoo, and that the tattoo was not substantially similar to Sedlik’s photograph. On January 30, 2024, Judge Fischer entered judgment on the verdict, dismissing with prejudice Sedlik’s claims and awarding the recovery of court costs under 28 U.S.C. § 1920, confirming that Sedlik would recover no damages.

Reasoning

 Substantial Similarity:

The jury found that the tattoo was not substantially similar to Sedlik’s portrait, taking into account the overall concept and feel of the works.

Commercial Nature and Fair Use:

Unlike most tattoos, which are usually tattooed for a fee, Kat Von D created this tattoo free of charge, which helps her strengthen her fair use defense. The first factor of fair use, considering the commercial character of the work, is a very important argument in copyright cases regarding tattoos.

Business Structures and Damages:

The organizational structure of tattoo parlors (e.g., sole proprietorships, partnerships, or independent contractors) may affect liability and damages in copyright disputes. Although Sedlik used a hypothetical-license fee model, which did not establish the market for his work and therefore the damage of revenue .

Appeal

The Court of Appeals upheld the jury verdict in Sedlik’s appeal over the jury’s finding that Von D’s tattoo and his photograph were not substantially similar. The court reinstated the jury’s determinations based on copyright infringement standards. To show infringement, Sedlik had to demonstrate ownership of a valid copyright and copying of original elements such as unlawful appropriation. The court used a two-pronged substantial similarity test:

1. Extrinsic Test: Objective comparison of specific expressive elements excluding unprotected aspects.
2. Intrinsic Test: A subjective assessment of the “total concept and feel” from an ordinary observer’s point of view.

The court held that the jury reasonably concluded the works differed in “total concept and feel,” and Sedlik failed to prove there was no sufficient legal basis for the jury’s verdict, upholding the decision.

Intrinsic Test:

Sedlik argued that the defendants presented no evidence to prove the works had different total concept and feel, but the court clarified that the intrinsic test does not require external evidence. It relies on the jury’s direct comparison of the works from the perspective of an ordinary person, making it particularly suited for the fact-finder’s determination. Courts are generally reluctant to overturn such findings.

Substantial Similarity Test:

Sedlik argued that the substantial similarity test was not necessary because direct copying was proven. The court rejected this argument, holding that copyright infringement requires a showing of both copying and unlawful appropriation. Direct copying alone is insufficient to satisfy the substantial similarity requirement unless the works also pass the intrinsic and extrinsic tests.

The court ruled in favor of the jury verdict and found no legally sufficient reason to overturn it. It reaffirmed the fact that copyright infringement is to be proved through both extrinsic and intrinsic tests of substantial similarity, thereby stressing the central role the jury must play in the intrinsic test and proving that there has been both copying and unlawful appropriation.

Moving forward

This case centered on commercial revenue and left unresolved whether tattoos are part of a person’s likeness or sufficiently transformative to be distinct expressions. As a jury verdict based on factual deliberations rather than law, it suffers as a  precedent for other jurisdictions. With no written opinion, the reasons remain unclear, though it highlights potential disputes when tattoos closely replicate photographs, artworks, or iconic designs. While future cases may resolve issues of damages, including fees for tattoos or lost revenue, this decision helped eliminate ambiguity on the inadmissibility of personal meaning in copyright suits. It reflects the evolving intersection of tattoo artistry and copyright law, providing limited guidance but leaving important questions open.

How does this affect India

As a common law country, India could take a similar route but that would be a significant shift from its earlier positions when it comes to copyright infringement of artistic work and fair dealing and fair use but it can not base it solely on labour of the artist but can base it on creativity of the artist in the form of sketches of the tattoos and the right to be the only artist to reproduce the same and tattooed person owns the tattoo on their body as part of their likeness, but this could be an issue when the tattoo is of a celebrity whose tattoo could be a distinct part of their likeness and the artist is not consulted when using the tattoo in prominent media such as films or video games as part of their likeness in a distinct and prominent way.Waiver forms of the copyright of the tattoo could be a viable solution in the time being when the law is developing. But the Indian jurisdiction would benefit from adopting the notion as in the case of Jeffrey Sedlik v. Kat Von D Row where the personal meaning and expression of the tattoo to the tattooed person was inadmissible.

In Conclusion India would be better off taking inspiration from the US jurisdiction in this aspect while still maintaining its existing principle of  ‘flavour of minimum requirement of creativity’

Author: Sarah Rose P, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.