Every person has a right to preserve his/her original work. If a person does not get the rights on the work in which he/she has put in hours of hard work, there is no point in giving the credits of originality. Therefore, to preserve the originality of the work and to prevent the plagiarism and copying of someone’s work, there are copyright laws that give them various rights regarding their work.
In this article, we will understand whether there is legitimacy in the copyright of tattoos and what rights are given to the owners of such work.
Any person who comes up with an idea or some original work has his sole right to it. It takes a lot of hard work, time, and pain to come up with an idea or work which is unique and no one has thought about it. The artists or the inventors of such an idea want to protect their intellectual property which was created by them and for this, the laws are created which guard their property against being stolen or plagiarized.
The word “copyright” can be defined as “Copyright (or author’s right) is a legal term used to describe the rights that creators have over their literary and artistic works. Works covered by copyright range from books, music, paintings, sculpture, and films, to computer programs, databases, advertisements, maps, and technical drawings”.
There are many types of work that come under the purview of copyright. They include
- literary works such as novels, poems, plays, reference works, newspaper articles
- computer programs, databases
- films, musical compositions, and choreography
- artistic works such as paintings, drawings, photographs, and sculpture
- Advertisements, maps, and technical drawings
In this article, we will focus on the point that whether tattoos can be considered under the work which can be considered as intellectual property and is eligible for copyright.
Laws that govern Copyright in India
The copyright laws in India are given under The Copyright Act, 1957.
Section 14 of Chapter 3 of the Act states the “meaning of copyright” which gives the owner of the work exclusive rights subjected to the provision of this Act, about doing or authorized to do any of the given acts in respect of the work. The rights are given to the owner of the work and the rights can be the right of production and publication, right of the transaction, etc.
Section 13 of the Act tells “Work on which copyright subsists”. It provides with the classes of work on which the copyright law can be conferred upon. They are-
- Original literary, dramatic, musical, and artistic works
- Cinematograph films
- Sound recording
The word which has the weightage is “original”. To be protected by the Copyright laws, the work has to be completely original.
Section 17 of Chapter 4 of the Act talks about the ownership of the copyright. It states the author has to be the first owner of the work.
The definition of the author has been given in the Act under sec 2(d).
International Treaties that Govern Copyright Law
Under international law, there are 2 very important treaties which are related to international copyright law
- Berne Convention for the Protection of Literary and Artistic work
- Buenos Aires Convention
The Berne Convention was adopted in 1886. It deals with the protection of works and the right of their authors. It provides the creators e.g. poets, musicians, painters, authors, etc. with the means to control how their work is used, by whom and on what terms.
It is based on the three basic principles and contains a series of provisions determining the minimum protection to be granted, as well as special provisions available to the developing countries that want to make use of them.
The three principles are–
- Works originating in one of the contracting states must be given the same protection in each of the other contracting states as the latter grants to the works of its nationals.
- Protection must not be conditional upon compliance with any formality (principle of “automatic protection”)
- Protection is independent of the existence of protection in the country of origin of work. If, however, a Contracting State provides for a longer term of protection than the minimum prescribed by the convention and the work ceases to be protected in the country of origin, protection may be denied once protection in the country of origin ceases.
Buenos Aires Convention
The Buenos Aires Convention is a copyright treaty signed at Buenos Aires, Argentina, on 11 August 1910, providing mutual recognition of copyrights where the work carries a notice containing a statement of reservation of rights (Art.3). This was commonly done with the phrase “All rights reserved” next to the copyright notice. This implementation varied as U.S law only required the author and year of publishing.
Copyright protection under the Convention is granted for the shorter of the terms of the protecting country and the source country of the work (“rule of the shorter term”, Art. 6 and 7)
The rather vague nature of the requirement for a statement of reservation led to the development of longer and more legalistic wordings, which have persisted despite the developments in international copyright law.
The Convention is specifically retained by the Universal Copyright Convention (UCC) of 6th September 1952 (Art. 18 Geneva Act)
The Buenos Aires Convention became a “special agreement” in the terms of Article 20 of the Berne Convention. It remains in force, notably for determining the source country of work and hence the term of protection which is applicable in countries which apply the “rule of the shorter term” when work is simultaneously published in a Convention State and a non-Convention State, the Convention State will be taken to be the source country regardless of the term of protection in the non-Convention State.
Do these Laws apply to the Copyright of tattoos?
Here we are going to discuss two perspectives of different countries, the USA and India.
Copyright under the US
The Copyright Law of the U.S is given in the Copyright Act of 1976, codified in Title 17 of the United States Code.
Article 1 Section 8 Clause 8 is the copyright law which gives the power to Congress to create copyright law.
The subject matter or the content which comes under the purview of the copyright law of the U.S is given under Title 17 Copyrights, Chapter 1, Section 102.
By studying the above laws, it becomes clear that the tattoos come under the purview of the copyright law in the U.S. any artistic work which has its originality will be considered as copyrightable material.
In 2020, a case has been filed by a tattoo artist named Catherine Alexander claiming that take-two interactive (gaming publisher) has used her designs in the WWE 2K series. She was challenging the tattoo which she inked on one of the WWE superstars Randy Ortan without her consent.
A similar case was filed in 2011 against Warner Bros. for using the tattoo of Mike Tyson in one of the scenes of the movie “Hangover II”. The movie showed a scene where Ed Helms (the actor acting in the movie) wakes up with Mike Tyson’s tattoo on his face. The complainant S. Victor Whitmill alleged that it was an infringement of his rights under copyright law.
Indian perspective of the Copyright of Tattoos
Under the Indian law of copyright, it is unequivocally mentioned that any original work can be considered eligible for copyright. As the laws mentioned above state the same.
The question regarding whether the tattoos can be considered as copyrightable work can be answered by the fact that the Indian Copyright Office, in 2011 gives Shah Rukh Khan a copyright registration for his tattoo.
The question that is posed is about the ownership of the material copyrighted. Does the copyright of a tattoo belong to the artist or does it belong to the person on whom the tattoo is inked?
Under Section 17 of the Copyright Act, 1957, the first owner of the copyright is the author (in this case the person who has designed the tattoo). But the person on whom the tattoo is being inked can also become the owner if the person can have a contract of service agreement signed by the tattoo artist.
Also under Section 18 of the Copyright Act, 1957, it is stated that an owner of the copyright may assign any other person as the owner wholly or partially.
Creating a tattoo requires the same amount of hard work, imagination, creativity, and talent. It should be given the same consideration just as the other form of arts, drawing is given. Any artist who creates his/her original tattoo has a right over it and can move to court if the right is infringed. As written by Tim Parks in his book “You will only have copyright in a society that places a very high value on the individual, the individual intellect, the products of individual intellect.”
- Can information or work which has not been written be copyrighted?
- Are all tattoos subject to copyright?
- For how long does a copyright last?
- Can the ownership of copyright get transferred?
- The Copyright Act, 1957
- “Where I’m reading from, the changing world of books” by Tim Parks
-  “Definition of Copyright” https://www.wipo.int/copyright/en/
-  “What can be protected using copyright” https://www.wipo.int/copyright/en/#accordion__collapse__01
-  “Section 14, The Copyright Act,1957” https://indiankanoon.org/doc/1129646/
-  “Section 13, The Copyright Act,1957” https://indiankanoon.org/doc/4010217/
-  ‘Sec 17, The Copyright Act, 1957” https://indiankanoon.org/doc/1404402/
-  “Sec 2(d), The Copyright Act, 1957” https://indiankanoon.org/doc/1655540/
-  “Berne Convention for the protection of Literary and Artistic Work” https://www.wipo.int/treaties/en/ip/berne/
-  “Three basic principles of the convention, Summary of the Berne Convention for the protection of the Literary and Artistic Works” https://www.wipo.int/treaties/en/ip/berne/summary_berne.html
-  “Buenos Aires Convention” https://en.wikipedia.org/wiki/Buenos_Aires_Convention
-  “The Buenos Aires Convention” https://web.archive.org/web/20061012213626/http://ipmall.info/hosted_resources/lipa/copyrights/The%20Buenos%20Aires%20Convention.pdf#search=%22Buenos%20Aires%20Convention%22
-  “The Universal Copyright Convention (Geneva text)” https://web.archive.org/web/20121125161930/http://ipmall.info/hosted_resources/lipa/copyrights/The%20Universal%20Copyright%20Convention%20_Geneva%20Text–September.pdf
-  “Berne Convention for the Protection of Literary and Artistic Works” https://www.wipo.int/treaties/en/text.jsp?file_id=283698#P98_14701
-  https://www.law.cornell.edu/uscode/text/17/102
-  “Shah Rukh Khan gets permission to get the tattoo copyrighted” http://archive.indianexpress.com/news/srk-registers-don-2-tattoo-in-his-name/817871/
-  “Section 17, The Copyright Act, 1957” https://indiankanoon.org/doc/1404402/
-  “Section 18, The Copyright Act, 1957” https://indiankanoon.org/doc/1703533/
-  “Where I’m reading from, the changing world of books” by Tim Parks