Once seen only on sailors and convicts, tattoos have found their way into mainstream society and are here to stay. There has been a considerable rise in the number of people who are seen sporting tattoos with themes that range from devotion to a particular rock band to the memory of a deceased loved one. For others, a tattoo is just a style statement without a deeper meaning associated to it. As a result, the tattoo business is blooming and several people with appreciable artistic talent are assuming the roles of tattoo artists.
Studies reveal that in the US, which is at the forefront of the tattoo business, more than 21% of adults have at least one tattoo and this percentage rises up steeply to about 38 % for people under the age of 40. The US tattoo industry generates $2.3 billion in annual revenues.
With the increase in their popularity and commercial value, several legal issues surrounding tattoos, that have been neglected until recently are slowly but surely coming to light. This article aims to analyze these legal issues and the different schools of thought regarding intellectual property in tattoos.
Captain James Cook witnessed Tahitians engaged in the practice of “tattowing” in 1769 and through an account of his travels in Polynesia, he introduced the term “tattoo” in the English language. However there is strong evidence that indicates that tattooing existed as a science long before Cook’s travels.
Egyptian mummies have been discovered tattooed with a dark, blackish blue pigment applied with a pricking instrument, perhaps consisting of one or more fish bones set into a wooden handle, dating back to as long as 2100 B.C.
In its current form, a tattoo is created by injection of ink into a person’s skin. A needle appended to an electrically powered tattoo gun punctures the skin between 50 and 3,000 times per minute and deposits a drop of insoluble ink into the skin.
IP in tattoos?
Intellectual Property issues underlying the subject of tattoos are being looked at with a close eye after the advent of a few cases of copyright infringement for use/display of tattoos without consent, including the famous case that tattoo artist Victor Whitmill brought upon Warner Bros for alleged unauthorized use of Mike Tyson’s tattoo in the movie “Hangover 2”.
Like any other artistic work, Copyright also exists in tattoos. Hence an original design of a tattoo created on a person’s body by a tattoo artist is an original artistic work in a tangible form and hence it qualifies for protection under copyright law.
For the purposes of the Indian Copyright Act, a permanent tattoo etched into a person’s skin falls under the purview of an artistic work, since the definition of artistic work explicitly includes engravings. A temporary tattoo or a sketch of a design to be tattooed on the skin can be considered as a drawing or painting which qualifies as an artistic work as well. As per section 2d(iii) of the Indian Copyright Act, the tattoo artist will be the author of the work.
Ownership of tattoos is a slightly complex and controversial issue and needs to be dealt with on a case to case basis. In order to understand the ownership of copyright in tattoos, the following two situations need to be considered:
- Custom Tattoos:
Client input is one of the aspects that helps shape the design of a custom tattoo. The design process commences with a consultation, wherein the client gives the tattoo artist a brief idea of the kind of image he/she desires for the tattoo. At this stage, feedback from the client is sometimes very specific and at other times, the client is more perceptive to the tattoo artist’s recommendations. Because of their greater familiarity with theories of design and composition, as well as a clearer understanding of the limitations of the medium, tattoo artists frequently guide their clients towards choices that, while true to the client’s original conception, are more likely to translate well into tattoos.
The design of a custom tattoo is made with the help of the client’s inputs and at the instance of a client. The client pays consideration to the tattoo artist for the tattoo and hence as per section 17 of the copyright act, the client will be owner of the copyright in the tattoo.
- Tattoos incorporating a Tattoo Artist’s original design:
Very often, tattoo artists conceptualize and create original designs on paper and record them in their oeuvre. Clients desirous of getting a tattoo look through the tattoo artist’s portfolio and opt for a design that appeals to them. The tattoo artist then engraves the said design on the client’s skin. In this case, although the client pays the tattoo artist for the tattoo, the design was not explicitly conceptualized and created by the tattoo artist for the client. The design was created by the tattoo artist before the client was even in the picture and the tattoo can merely be considered as a derivative of the original design. In such a case, the tattoo artist will own the copyright in the design and merely grants a license to the client to display the same. However, the right of a client to display the work for commercial gain without the tattoo artist’s consent is again a matter of controversy and this issue had cropped up in a couple of cases.
- Tattoo Flash:
A tattoo flash is a printed design that can be turned into stencils for rapid tattooing. The person who creates the tattoo flash owns them and can sell them just like other copyrighted items such as books. Tattoo artists desirous of buying flash, pay for them and acquire an implied non-exclusive license to use them and to reproduce it on as many clients as they choose. However, making copies of the tattoo flash itself and selling them would violate the copyright holder's rights.
In case any person copies the design of a tattoo or does any of the acts listed in section 51 of the Copyright Act, he will be liable for copyright infringement. In such a case, the remedies for copyright infringement stated in the Copyright Act such as an injunction and damages would be available to the copyright holder. However exercising the remedies that deal with delivery up of infringing copies, and the power of police to seize infringing copies would not be possible, because in such a case the infringing copy would be on a person’s skin. Arrest of a person, on whose body the infringing tattoo design is engraved, would be unconstitutional at several levels.