Let That Ink In: Tattoos and Tattoo Artists in the realm of Intellectual Property
– Shethin Chacko
Unlike general perception, body tattoos, or in a broader sense, any form of symbolic marking on one’s body, are not at all a western new age fad that seems to have stood the test of time. In reality, the act of printing or ‘branding’ the skins of humans using needles and sharpened branches and forms of natural ink has been prevalent since the end of the Ice Ages, in various different cultures, for purposes such as beautification, mark of identity of rank, class, tribe, and even as target marking for discrimination in fascist regimes[1]. Although having its roots predominantly in royalty and nobility[2], the art of tattooing was eventually attempted to be reduced into an element to visually be relatable to rowdy or rogue elements of society[3]. Even in India, the art of tattooing has been a tradition among various prehistoric tribes, that has found its place as rituals among tribes of various states of India including Jharkhand, West Bengal, Bihar, Gujarat, Nagaland and Tamil Nadu[4]. Today, tattoos are broadly seen as avenues of self-expression, self-affirmation, memory preservation or even a bold fashion statement in the form of wearable body art. These intricate inking, almost usually always done by hand, cannot be termed as anything other than an artwork. However, when the medium of the art is human skin, in most cases that of another person, several questions on the realm of protection of tattoos arise – whether it is protection of the rights of the creators of the tattoos, the wearers of the tattoos, or in some case, the prior protection of the contents of the tattoos itself.[5] For the purposes of copyright and copyrightability of tattoos as an artform, an insight into the Copyright Law in India would be necessary.
A copyright, briefly, is a legal property right granted to creators of original literary, artistic, dramatic or musical work allowing them to exclusively use and distribute their work or[6], literally, the right to make copies of their work[7]. The subject matter of what can be copyrighted has heavily expanded since the evolution of the right so as to now include source codes for websites, algorithms for artificial intelligence, and in some cases, tattoos. The Copyright Act, 1957 [“the Act”] is the governing act in India for protection of copyright, Section 2(c) of which provides for the definition of artistic work to include[8]:
““(i) a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality;
xxxx xxxx xxxx
(iii) any other work of artistic craftsmanship.”
While it cannot be denied that tattoos are, in fact, art – although it was debated for long whether human skin can be said to be a medium for art[9] – the slippery slope begins at protecting tattoos and regulating protected designs. While the copyright law in the United States requires artistic expressions to be original and fixed on “a tangible medium” for it to pass the threshold of copyrightability[10], no such criteria on the medium exists in corresponding Indian Law. The protection of the works of the ‘creator’ naturally derived from the meaning and rights granted under copyright law, including the exclusive right to replicate, however, the idea and meaning of ‘copying’ or ‘replicating’ was to create identical copies. In the realm of tattoos, since, in most cases, tattoos are inked on by tattoo artists by hand, chances are that it may never be a true ‘copy’ and each ‘replication’ as such could be termed as new art. With the subject matter of tattoos, as is for copyrights in general, there is a prerequisite of the artwork being original – which originality is in question when, in recent past, several similar designs including some standard designs which customers usually choose from have become common among tattoo commissioners. However, for a tattoo design to be copyrighted, it will have to fulfil the criteria of being original and printable[11] which, if granted, shall grant rights to the tattoo artist under Section 17 of the Copyright Act, 1957, being the artistic creator of the artform on the medium. As the ‘wearer’ of the tattoo, one cannot claim any copyright thereof, for the simple reason that it was finally created by another person using their artistic skills and knowledge. Even if the consumer or wearer gave the design or the idea to the tattoo artist, the act of tattooing said art on one’s body acts as a form of commissioning artwork from painters, the copyright of which will vest with the creator and not the commissioner. Even if the wearer of the tattoo may have designed the said artistic image themselves, the art of replicating that image onto skin, using skills and knowledge of tattooing someone is the creation of artistic content in this scenario[12], and thus the rights following that of creation of artistic work will be in favour of the tattoo artist solely[13].
The question of copyrighting tattoos can only arise when a tattoo artist creates a customized and original artwork on someone’s body[14]. The tattoos found preexisting in catalogues or booklets of tattoo shops and found on social media handles of the tattoo artist, more or less cannot be copyrighted, inasmuch as it may be lacking “originality”. An argument can be made for the artistic nature of the image, and the skills required to transfer the idea onto skin, but unless the artistic work in itself is original and not directly lifted from pre-existing works of art, it cannot be said to be copyrightable. However, what naturally follows is how can one visually signify that the image is one that’s copyright is attributed to the artist. Surely, the person wearing the tattoo would decide if they would want the tattoo artist’s logo, initials, signature or even the © symbol anywhere near the tattoo commissioned, particularly since the medium in this case is a part of the commissioner themselves, and is otherwise a tricky medium to claim rights or demand commercial branding over. Being able to regulate how one’s art is portrayed and the wearer’s actions with the visible tattoo, in the case of a supposed copyrighted tattoo, would unfavourably interlock with freedoms granted to individuals, particularly freedom of expression and bodily autonomy of individuals. Similar to commissioned paintings, the artwork may be owned by the one paying for it to be made, however, the copyright shall vest with the creator of the art alone, at least at the first instance. Expanding on this aspect would lead to a conclusion that tattoo artists would be the authority deciding on when, how, and on what terms the supposed copyrightable artwork can be replicated, and seek royalty for the same.
Most tattoo parlors have consent forms, usually used to absolve the tattoo artist in scenarios of mishap, and to ascertain that the wearer is an adult of sound mind while getting permanent inking on their body. While practiced by a handful of establishments, the confusion may be bridged by incorporating agreements between tattoo artists and tattoo commissioners highlighting consent, the nature of an independent contract for the tattoo process, consideration, moral rights, ownership, and pertinently, the intellectual property rights. Such a contract will protect parties to a tattoo, and registration under the Act with the relevant authorities for original artistic work can protect the tattoo artist from unauthorized replication of their designs. With this, it may be possible for the documentation to deem the tattoo artist as a ‘hired employee’ or a ‘contractor’, being the primary owner of the copyright. Other steps as envisaged in the Act could be either assigning the granted copyright to someone else, including the wearer of the tattoo, under section 18 of the Act, prior to negotiating the terms of the contract, or by issuing licenses under Section 30 of the Act. The realm of regulation and contract negotiation for tattoos and protection thereof in India has not been explored fully as opposed to that in United States and other jurisdictions. US Courts have read in rules of “implied license” [15] in cases of copyright infringement of tattoos and public personality of celebrities inasmuch as people wearing tattoos have an implied license to display their tattoos in public[16].
There may not be enough precedents and law to determine what would constitute infringement in the world of tattoos. Even in situations of copyrighted designs and works being tattooed on people, one can easily claim that their artform is transformative, inasmuch as drawing the image on paper, canvas or a screen is far more different than that of needling it into one’s skin with permanent ink. Given that the copyright law in India do not delve deeper into intricacies such as fair use, commentary, parody or transformation, the legal scenario for protection of copyright cannot even be said to be in a nascent stage. Even on following existing law of copyrights on a supposed case of infringement of copyright in a work of tattoo commissioned, the extent of remedies available shall be a grey area[17] – what remedies would one have for protecting their copyrighted work that has already been tattooed on someone else by a tattoo artist? Would the wearer of the tattoo have to be subjected to modification of their tattoo, or endure the far more painful process of surgical removal of tattoos? Even so, would it be appropriate to do so at the expense of the copyright holder, or the wearer of the tattoo, or would it be just demanding any reimbursement or financing from the tattoo artist for such a supposed modification/removal?
With the lack of law or regulation to fully realise and regulate the largely unregulated world of tattoos, and the requirement of balance between creator’s rights, commissioner’s rights and protection of intellectual property, the world of tattoos shall remain an area for trials and errors. While, in theory, it may be possible to successfully register copyrights in original tattoos created by tattoo artists, the lacuna arrives in the form of what can be deemed to be artistic and original for tattoos, and what remedies shall be applicable on a subsequent discovery of infringement[18]. Today, one can walk around with an intricate, artistic and custom tattoo on one’s body unbothered about copyright concerns as the wearer is not claiming copyright on the same. In the practical impossibility of ‘marking’ a custom tattoo with recognizable words or marks of the artist without the consent of the wearer, artists have begun sharing their creative works on their websites and social media pages. In reality, in India, most tattoo artists agree that on payment by the wearer, all rights of the tattoo would be to the benefit of the wearer, and the tattoo artist accepts compensation as payment for services. Bridging most of these gaps can be attained through a better contract system, in the form of a memorandum of understanding, at the behest of the tattoo artist, outlining possible terms, as indicated above and otherwise, to protect the artist, the wearer and the general public at large. When the medium involved is one’s own skin, and considering the intricacies of the process and the permanency of the ink, a regulatory mechanism, at least in the form of standard contracts, may be the need of the hour.
xxx xxx xxx
References:
[1] Bloch, A. (2024). The body as a canvas: Memory, tattoos and the Holocaust. The Sociological Review, 00380261231205423.
[2] Bailkin, J. (2005, March). Making faces: tattooed women and colonial regimes. In History Workshop Journal (Vol. 59, No. 1, pp. 33-56). Oxford University Press.
[3] Sizer, L. (2020). The Art of Tattoos. The British Journal of Aesthetics, 60(4), 419-433. Available at https://doi.org/10.1093/aesthj/ayaa012
[4] Ghosh, P. (2020). Tattoo: A Cultural Heritage. Antrocom: Online Journal of Anthropology, 16(1).
[5] Cummings, D. M. (2013). Creative Expression and the Human Canvas: An Examination of Tattoos as a Copyrightable Art Form. U. Ill. L. Rev., 279.
[6] Lal, N., & Sahni, A. (2013). Lal’s commentary on the Copyright Act, 1957 (Act No. 14 of 1957): With the Copyright (Amendment) Act, 2012 (Act No. 27 of 2012), The Copyrights Rules, 2013 & Neighbouring Rights, Also International Copyright Order, 1999.
[7] Supra note 5
[8] The Copyright Act, 1957, being Act No. 14 of 1957 vide S.R.O. No. 269, dated 21st January, 1958.
[9] Supra note 5
[10] Wills, K. (2021). That Tattoo on Her Shoulder: The Intersection of Copyright Law & Tattoos, 7 Tex. A&M J. Prop. L. 622 Available at: https://doi.org/10.37419/JPL.V7.I4.3
[11] Rudyk, R. B., & Davie, W. R. (2014). Body Modification: The Case of Tattoo Copyright. Southwestern Mass Communication Journal, 30(1), available at https://doi.org/10.58997/smc.v30i1.6.
[12] Wasnik, A. (2022). Tattoo Artist and Tattoo Bearer’s Rights under the Law. Issue 2 Int’l JL Mgmt. & Human., 5, 77.
[13] Supra note 10
[14] Supra note 7
[15] Solid Oak Sketches LLC v. 2K Games Inc., 449 F. Supp. 3d 333 (S.D.N.Y 2020)
[16] Maldonado, G.J.O. (2021). Who Owns a Tattoo? Lesson from Solid Oak Sketches, Llc v. 2K Game, Inc. and Take-Two Interactive Software, Inc. 90 Rec. Jur. U.P.R. 721
[17] King, Y. M. (2015). Protection and Enforcement Challenges for Tattoo Copyrights. Colum. JL & Arts, 39, 437.
[18] King, Y. M. (2014). The Enforcement Challenges for Tattoo Copyrights. 22 J Intell. Prop. L. 29 (2019).