Tricky Tattoo

Understanding Copyright

How would you define copyright? In simple word, the term “copyright” is a combination of the two words, i.e., “copy” and “right,” which means “right to copy.” In other words, it gives the copyright owner the exclusive right to make copies of the work, and to exercise the secondary rights that come with the monopolistic power, such as licensing rights, etc.

The genesis of copyright as an established legal right can be traced back to England, 1710 where the first copyright law— the Statute of Anne was established. What made it truly groundbreaking was that instead of naming the publisher, it changed to name the author as the true holder of the copyright, effectively bringing an end to three centuries’ monopoly of the Stationers’ Company in England. This Statute aimed at bringing about a more equitable platform for both the authors and the publishers, and also encourage the “dissemination of knowledge”.

However, any piece of work cannot qualify to receive a copyright protection unless it meets the following two criteria: originality, and fixation in any tangible form. Copyright is a limited protection. This is due to its strict commitment towards the principle of protecting only the expression and not the idea. Facts or universal truths are another major exemption to copyright.

Section 2(c) of India’s 1957 Copyright Act defines ‘artistic work’ as any work that includes engraving, sculpture, painting, or photography. So, which kinds of works qualify for copyright protection?

 They are as follows:

• Literary Works
• Artistic Works
• Dramatic Works
• Cinematographic Films
• Musical Works
• Sound Recordings

The copyright law decrees that copyright protection exists from the moment a creative work is finished. However, that is sometimes not enough to avoid infringement, which is where registration comes in. While registration by itself is not a bulletproof shield against copyright infringement, it helps with the burden of proof.

Understanding tattoos through the lens of copyright

What exactly is a tattoo? It is the act of engraving a particular image upon the body by inserting pigment under the skin. This practice has been around for a very long time, transcending various cultural and traditional meanings all across the globe spanning millennia. Charles Darwin had observed in ‘The Descent of Man’ (1871) that there had been no country in the world which had no practice of tattooing or some kind of permanent body modification. Various ethnologists and anthropologists have found multiple genesis for tattooing all around the world, discrediting the popular notion of tattooing having a single origin. The oldest record of tattoo on human skin was found preserved upon the mummified skin of a Bronze-Aged man (nicknamed ‘Otzi the Iceman’) from around 3300 BCE. Found in one of the glaciers of the Otzal Alps, his body had 57 tattoos on it, many of which were found coinciding with acupuncture points, birthing the notion that maybe tattoos were an earlier form of treatment for certain diseases, such as arthritis.

Both historically and culturally, tattoos have been mostly used in two ways: as a badge of honour, or a mark of shame. But over the centuries cutting to the modern day, tattooing has become a practice of daily affairs. Since tattoos are inscribed on the human skin, they are thus considered to be a “fixed tangible medium” — fulfilling the Act’s statutory criteria for being an artist’s work. Thus, tattoos also come under the ambit of the Section 13(1) of the Copyright Act. Once we have established that tattoos are artistic work and thus deserving of copyright protection, we are compelled to answer the original question of a tattoo’s ownership. Is it the tattooist who engraves the tattoo, or the client whose skin bears the art? Section 17 of the Copyright Act states that the copyright belongs to the work’s creator, which implies that the tattooist is the copyright owner of the tattoos. No longer bound by the set symbolisms that were prevalent in the early days of practice, tattooists are emerging with their own styles of art or having clients with requests for what they want with their own designs in mind. In such a scenario, the concept of copyright ownership has begun to emerge over the past few years, especially when celebrities have also joined the fray. Knowing the influence celebrities have over setting trends, tattoo artists are even more concerned than ever over claiming copyright ownership over their tattoos.

USA

The USA, in essence, agrees that tattoos can be protected by copyright. Going by the doctrine of modicum of creativity, as long as the author expresses their work originally and the work possesses at least a minimal amount of creativity, it is protectable by the copyright law.

Tattoos, however, is only recently being taken seriously and is being considered to fall under the ambit of copyright protection. By taking a look at some of the cases in USA, we see how it has evolved over the course of the past decade.

In the case of Whitmill v. Warner Bros. Entertainment Inc. (2011), the plaintiff sued the defendant because that the facial tattoo shown on Ed Helms (one of the protagonist actors) in Hangover II is a duplicate of the tattoo he had created for the boxing champion Mike Tyson, thus infringing his copyright in the tattoo. Whitmill as a result sought a preliminary injunction against the film. The presiding Judge Perry of the U.S. District Court denied the motion stating the hardships that would ensue and the harm it would cause to third parties would be too great. However, Warner Brothers was not entirely let off the hook. Despite Judge Perry’s initial declination of the motion, Whitmill additionally sought a permanent injunction for what he alleged to be a “reckless copyright infringement” which, upon being granted, would prevent further distribution of the movie, including its DVD release. Judge Perry agreed to pass the motion and indicated in her court opinion that it was strongly likely that Warner Brothers could be held liable for copyright infringement in its recreation of the tattoo without obtaining Whitmill’s permission to do so. After more back and forth between the two parties, they ultimately settled the matter in a mediation session amicably right before Judge Perry gave the green signal to carry forward a trial against the Warner Brothers.

Cut to 2016, a tattoo company by the name of Solid Oak Sketches sued a video game company named Take-Two for copyright infringement because the latter depicted Lebron James’ tattoo both in the game and in the cover art without seeking their permission first. A federal judge ruled in 2020 that Take-Two could not be sued, reasoning that “because tattoo artists know that the tattoos of famous athletes are likely to be displayed in public, they necessarily granted the players a non-exclusive license to use the tattoo as part of their likeness”, in addition to citing de minimis and transformative fair use. However, when a similar case was filed in 2020, an Illinois judge felt inclined to side with the tattoo artists instead. In Alexander v. Take Two Interactive Software, Inc., et al, the judge, in 2022, rejected the defendants’ claim for de minimis and stated that there were triable issues of fact related to its transformative fair use defense, leading to Catherine Alexander winning $3,750 in damages.

So, as we can see, it has been a tumultuous situation as far as tattoos and copyright are concerned in the United States of America. But it seems like the courts are beginning to favour looking at tattoos as a potential area for copyright protection, if the Alexander v. Take Two case is anything to go by.

UK

The United Kingdom majorly functions on the doctrine of the ‘sweat of the brows’, which is the main jurisdictional difference between USA and UK. It is interesting to note that tattoo enjoys similar acceptance for copyright protection eligibility as it does in the USA, although there has not been much to challenge it insofar.

Conclusion

Tattooing, while even older than the existence of copyright, is only now being considered to be under the ambit of copyright protection in this millennium. While the laws surrounding it are still murky, the courts are becoming more and more inclined towards being on board with protecting tattoo artists as well. With this, it may be very well possible that tattoos will gain a completely new status eventually.