Copyrights and the Art of Inking

Tattooing has been very popular in western culture. Movies and celebrities have influenced this popular culture of inking body. In realm of law, this has raised a very valid question. Whether the tattoo inked by tattoo artist can be copyrighted? Since India has still not witnessed any legal battle in this regard, this write-up will be only confined to the legal trends found primarly in the US. Any tattoo becomes copyrightable if it is original and fixed in a tangible medium (s.102 of the US Copyright Act,1976). It should not be a copy of another; it should be unique in its own way. Hence the tattoos which state generic terms like ‘mom’ are not copyrightable.  A tattoo can be solely the creation of the tattoo artist or can be a ‘joint work’ by tattoo artist and client. Merely suggesting the colour combination or arrangement does not make the client the co-author of the work. He must be in a position to determine and contribute significantly to the tattoo design. In former case, the client do not claim copyrights over the tattoo while in latter case, if one of the authors license without the permission of the  other author, this will result in copyrights violation.. Fixation in a tangible medium means it must be permanent and should be copied in a paper, canvas or CD. The Courts of US have recognised human skin as a tangible medium for the purpose of copyrighting tattoo.  The Indian Copyright Act, 1957 defines artistic work to include ‘any other work of artistic craftsmanship which is an inclusive definition to include tattoo.

The stand taken by US Courts on copyrightability of tattoo is primarily discussed in three cases.

Reed v. Nike Inc. :Rasheed Wallace Tattoo (2005)

The question whether tattoo could be subjected to protection under copyrights was discussed under this case.  Here, the tattoo artist Reed sued for damages against Nike and Weiden for using Wallace’s tattoo without his permission. Further, charges of contributory negligence were levelled against Wallace for making other defendants believe that he was the sole author of the tattoo. However, this case was settled before it went for trial.

Whitmill v. Warner Bros: Mike Tyson Tattoo (2011)

This is the most celebrated case on the copyright infringement of tattoo belonging to tattoo artist. In the slapstick comedy movie ‘Hangover II’, the Helms’s character depicts the tattoo of Mike Tyson. Whitmill contended that defendant has infringed his copyright by copying  it and publicly displaying it in addition to creating a derivative work. The preliminary ruling was in favour of Whitmill. The matter was decided out of Court.

Escobedo v. THQ: Conditt Tattoo (2012)

Escobedo had tatooed a lion on one Conditt .Conditt on an implied license permitted the defendant to display the tattoo on his body but not the right to reproduce it. Escobedo filed a case for derivative work against the videogames company, THQ Inc.

Effect of Copyrights on tattoo

The copyright holder is given the right to exploit it, license, reproduce or even extinguish it. In case of a tattoo, it is not possible for the tattoo artist to refrain his client from publicly displaying his tattoo. He gives his client an implied license to publicly display it and restrict the right to reproduce it and create derivative work. Johnny Depp modifying his tattoo from ‘Winowa Forever’ to ‘Wino Forever’ is an example for derivative work.  The tattoo artist is entitled to moral right that his creation should not be destructed, modified or mutilated without his permission. This is protected under Visual Rights of Artists Act in USA.  This means laser treatment to extinguish tattoo can be only done with the permission of the artist.

Conclusion

Copyrights on tattoo provide protection for artist for their artistic work. It is to note that in Reed’s and Escobedo’s case, they were alleging copyrights over preliminary drawings of tattoo while in Whitmill’s case, copyrights was on the tattoo itself.  Although the Court has recognised copyrights on tattoo, it failed to explain standard prescribed for adjudging both situations. To avoid conflicts, the parties must consider either entering into ‘work for hire agreements’ entailing waiver clause or license agreement to share benefits and reduce cost of litigation and thus creating a balance between  the rights of the artists and clients.

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