This piece has been authored by Ritikaa HR, Damodaram Sanjivayya National Law university, Vishakapatnam (DSNLU)

Keywords: tattoo, copyright, originality, designs, clients.

The Copyright Act offers protection for a broad spectrum of creative works, delineating the precise works that can be secured by copyright from those that cannot. The fundamental tenet of copyright protection is premised on the idea of “original expression” within the spheres of literature, drama, music and art, emphasizing the significance of originality rather than novelty. Copyright protection is primarily based on the principle of originality, which stipulates that a work must be a result of the creator’s individual labor, skill, judgment, and creativity. In the context of copyright law and its emphasis on originality, a pertinent and emerging issue is how tattoo artwork is treated under copyright. Tattoos embody a fascinating overlap between creativity, individualism, and intellectual property rights. This article examines the intricate terrain of copyright entitlement for tattoos and the legal aspects associated with this one-of-a-kind form of artistic expression.

Ownership of Tattoo Copyright:

Tattoos, as a contemporary form of artistic expression, give rise to distinctive legal queries. Although tattoos may appear to meet the requirements for copyright protection at first glance, it becomes more complicated when applied to the human body. The central issue is the ownership of the copyright for a tattoo. If the tattoo artist does not expressly grant copyright ownership in writing, the individual with the tattoo cannot claim ownership of the copyright. In order to be eligible for copyright protection, a work must satisfy the requirement of it being “fixed in any tangible medium of expression.” With reference to tattoos, this means that they must be conveyed on paper or a similar medium before they can be considered for copyright protection. The durability of a tattoo is not relevant as they are intrinsically permanent.

Conceptual separability is an additional aspect to consider. Even though tattoos are on the human body, they can still be considered conceptually separable and eligible for copyright protection. The argument against their copyrightability due to being attached to the body is rebutted by the fact that they can be reproduced on other media, such as paper, without any diminishment to their artistic value. Nevertheless, tattoos are predominantly regarded as an artistic expression and thus satisfy the requirement of conceptual separability. The idea that tattoos should not be granted copyright protection due to their non-traditional nature is contested by the law. The categorisation of a piece as a “traditional art form” should not influence its copyright eligibility. Discriminating against tattoos based on their distinctiveness would breach anti-discriminatory norms and disregard the principle that aesthetic value should not be determined by inexperienced individuals in the arts.

In the tattoo industry, copyright ownership of a tattoo generally belongs to the tattoo artist, except in cases involving commissioned work or employment agreements. Typically, the copyright rests with the tattoo artist, excluding cases of commissioned work or employment situations. The artist is deemed to be the sole author if they conceive and create the design, while joint authorshipmay be applicable if both the artist and client make significant contributions to the design. Tattoo artists are granted exclusive rights, which encompass both economic and moral aspects. They are able to control public communication, duplication, and alterations related to their work. In addition, moral rights such as the right of paternity and integrity safeguard the author’s creation. However, in some cases, exceptions may arise that affect ownership, particularly regarding commissioned works or employment scenarios. The complex legal issues pertaining to copyright and exclusivity rights within the tattoo industry present a multiplex structure that demands meticulous contemplation in academic conversations.

Legal Cases and Copyright in the Tattoo Industry:

Various legal cases have arisen relating to the copyrightability and use of tattoos in the entertainment and sports industry. Particularly, Reed v. Nike, Inc. concerned a tattoo artist, Matthew Reed, who claimed copyright infringement when a Nike advertisement featured Rasheed Wallace’s unique tattoo. Although the case was resolved out of court, it prompted early discussions on the copyright safeguarding of tattoos and their usage in adverts. In the case of Whitmill v. Warner Bros., S. Victor Whitmill, the tattoo artist responsible for Mike Tyson’s face tattoo, brought a legal action against Warner Brothers for replicating the tattoo in their film “The Hangover 2.” While this dispute was resolved outside of official proceedings, the court established that tattoos and their designs may be protected by copyright law. It was stressed that copyright protection does not infringe upon the rights of the person who has been tattooed. In the case of Ricky Williams’ Tattoo, Electronic Arts and Ricky Williams were sued by tattoo artist Stephen Allen for using his tattoo in a video game without his authorization. Although Williams conceded his claim, it raised awareness of the topic of protecting copyright for tattoos.

The legal dispute known as the Carlos Condit Tattoo Case arose when tattoo artist Christopher Escobedo sued video game developer THQ, Inc. for violating his copyright. The case brought attention to the intricate nature of tattoo copyright, the worth of a tattoo’s claim, and the consequences of using tattoos without the artist’s consent. In Solid Oak vs. 2k, Solid Oak Sketches LLC initiated legal action against 2k Games and Take-Two Interactive for featuring NBA players’ tattoos in the “NBA 2K” video game. The court’s deliberation of fair use and the extent of tattoo visibility in gameplay contributes to the ongoing debate on the copyright protection of tattoos in digital media. These instances emphasise the complicated legal aspects and progressing landscape of tattoo copyright, prompting queries on ownership, violation, and the reasonable use of tattoos in different forms of media and entertainment.

Challenges and Considerations:

The issue of copyright infringement within the tattoo industry is multifaceted, with particular features and obstacles. While copyright legislation generally oversees a range of artistic industries, the uniqueness of tattoos necessitates specific attentiveness. Unauthorized reproduction and display of copyrighted body art, such as tattoos, can result in claims of copyright infringement. This is demonstrated by cases such as Reed v. Nike, Inc. and Whitmill v. Warner Brothers Entertainment, Inc., although many cases have been resolved or dismissed. The tattoo industry places a strong emphasis on individuality and the unique nature of custom tattoos, distinguishing it from traditional fields that rely on copyright. After the completion of a tattoo, clients usually take charge, in line with the principles of personal autonomy and freedom. Copyright infringement and legal recourse in the field of body art can be problematic, especially when both the tattoo artist and the subject are subject to liability.

Proposed methods of copyright protection for tattoo artists involve differentiating between the tattoo design and the tattoo itself. In this model, tattoo artists retain copyright over the designs they produce, while clients maintain control over the actual tattoos once they are inked onto their bodies. This approach respects both the artistic freedom of tattoo artists and the autonomy of clients. It is imperative to provide education to tattoo artists and clients regarding copyright in order to ensure a shared comprehension and respect for their rights. These approaches endeavour to establish an equilibrium between safeguarding the interests of both tattoo artists and clients while accounting for the exceptional difficulties associated with copyright violations in the tattoo industry.

Recommendations and Best Practices:

1. Differentiating Tattoo Design: A clear distinction must be made between a tattoo’s design and the tattoo itself. Tattoo artists must retain copyright over their designs, while clients should possess control over their tattoos upon being inked. This separation permits clients to exercise autonomy over their tattoos while preserving the artist’s creative rights.
2. Waiver Forms: Clients who desire complete control over their tattoo design may consider waiver forms. These forms enable the tattoo artist to relinquish certain rights pertaining to the tattoo and its design. Waiver agreements may be individually negotiated or standardized within the tattooing community, offering clients an extensive range of design options.
3. Sui generis legislation: It is required for tattoos due to their unique status as an art form that uses the human body as a canvas. Sui generis legislation is required for tattoos due to their unique status as an art form that uses the human body as a canvas. This legislation could provide clarity and protection which is currently lacking. This specialist legislation could delineate the rights and duties of tattooists and their clients, set out the length of protection, and specify legal recourse. Standards for determining acceptable tattoos could be established based on their creativity and originality.
4. The acknowledgment of tattoo copyright: It is a noteworthy achievement for the industry. Tattoo artists ought to actively assert their rights within this artistic and unconventional domain, in order to safeguard their imaginative work and retain mastery over their craft. It’s crucial to apprise both artists and clients of copyright legislation and safeguards in the tattoo industry.

In conclusion, it is crucial for the tattoo industry to adopt copyright recognition to safeguard the rights of artists, honour clients’ autonomy, and promote artistic expression. By establishing a transparent legal framework, distinguishing between tattoo designs and tattoos, and enacting sui generis legislation designed for tattoos, the industry can provide the essential protections for this dynamic and evolving art form. Tattooists and their customers need to be educated on their rights, while the legal system should adjust to safeguard tattooists’ intellectual property rights. This will ensure that the tattoo industry flourishes as a respected and revered means of artistic expression.