The practice of body graphics and tattoos have existed from time immemorial. With the constant metamorphosis of technology and art forms and the emergence of new industries like the tattoo industry has raised the question of whether the current legal framework is prepared to effectively govern this budding industry? With a lack of explicit law relating to tattoos and the dearth of judicial precedents, there is a perplexing contradiction between who owns the tattoo and the fundamental freedom of an individual.
To begin with, in India, tattoos can be protected by copyrights under artistic work provided they satisfy the statutory conditions that are ‘original work’ and ‘fixed in tangible medium’ (in this case a human). A proof that tattoos are copyrightable was given by the Indian Copyright Office by registering the tattoo of the letter ’D’ in the name of Shahrukh Khan, for his film Don 2 in 2011.[1] Thus, a tattoo design can be protected by copyright, provided it shows sufficient originality and is fixed on a medium. Though there are no cases of disputes relating to copyright infringement in India yet, the S. Victor Whitmill Vs. Warner Bros’ case[2] threw light on the issues relating to the protection of tattoos. Warner Bros were sued by the tattoo artist from Missouri for the unauthorized use of Mike Tyson’s tattoo in the movie Hangover II. Though the case was settled discreetly, the question who owns the tattoo and who shall reap its benefits continues to persist.
Under the Indian Copyright Law, the owner of the copyright is the author of the work (in this case the tattoo artist). As the owner of the copyright, the tattoo artist has the right to exploit his work and to communicate the piece of work to the public. This could imply that the tattoo artist will control his artwork which would include the medium on which the tattoo is fixed, that is a human, which would violate the freedoms provided under Article 19 and 21 of the Constitution. For instance, in the Whitmills case, if the sole rights of communicating to the public or exploiting the work were vested in the tattoo artist, the professional boxer Mike Tyson would have to quit appearing in public or appear with his half face covered. For such celebrities, who derive income from public appearances, it would be against the fundamental rights to freedom as well as impact their earnings.
Furthermore, as the owner of the tattoo, the artist enjoys moral rights like the right to integrity that is the tattoo artist can restrict the tattoo bearer from altering, modifying, or doing anything prejudicial to the tattoo artist’s reputation. This would potentially have a negative impact on the human rights of the tattoo bearer. Thus, though the copyright law is well codified, it is quite ambiguous when it applied to the tattoo industry. Complete protection of tattoo artist will have dire consequences on the human rights of the tattoo bearer, while completely denying their rights would discourage the tattoo artists from displaying their creativity. Extending the scope and meaning of the law for example extending the definition of work for hire and a strong precedent to protect and execute the rights of the copyright holder without violating fundamental human rights could help solve the issues pertaining to the tattoo industry.
[1] Indian Express, http://archive.indianexpress.com/news/srk-registers-don-2-tattoo-in-his-name/817871/ 15 July 2011
[2] S. Victor Whitmill Vs. Warner Bros., Civil Action No. 4:11-cv-752