Think before you ink! Copyright and tattoos
The evolution of tattoos is as interesting as the art itself; it was the during the voyages for the discovery of new worlds that the Europeans came across natives having these permanent designs of themselves. These later became a rage in Europe, which later died down to be used by criminals as well as the justice system to brand criminals with tattoos as a form of punishment and shame. This later became a sign of freedom of expression and has now become almost a norm than an exception. At the end of the day tattoos are a work of art and expression of the artist just that the canvas is a person’s skin.
Tattoo in the USA: In the most popular of the tattoo haven, they are seen as works of art entitled to protection under the US Copyright Law as a “pictorial, graphic or sculptural work permanently affixed to a canvas. The owner of the Copyright is the artist in the absence of any express agreement. An interesting lawsuit that I found was a case brought in 2011 by tattoo artist Victor Whitmill against Warner Bros. If you remember the comic caper Hangover Part II where Stu (Ed Helms) wakes up with Mike Tyson’s facial tattoo. Whitmill claimed that the Studio owed him for recreating the famous tattoo which was his work, without his consent. The case was settled for an undisclosed sum.
India Ink: According to the Indian Copyright Act an artistic work is defined as ‘a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality;’ and an author in relation to an artistic work other than a photograph is the artist. Going back to tattoos, they are works of art, almost a painting, a drawing and an engraving. Hence a tattoo does fall under an ‘artistic work’. Unlike in the USA, the Indian Copyright Act does not mention anything about a canvas. Publication of the work would mean making the work available to the Public, to be seen, heard, read. Hence a tattoo would be an artistic work, created by the author and is published. Hence is capable of being protected under the Copyright Act under Section 13.
Now comes the question of ownership: Under Section 17 of the Act the first owner of the copyright is the author of the work (in this case the tattoo artist). Yes, though the tattoo is in your body, the owner of it is still the artist. But this is not the end of the road, you can become the owner of the tattoo by way of having a clear contract of service agreement signed before going under the needle. In this case the employer(you) shall be the owner of the copyright.
Even in case you missed this step and still want to be the owner of the Copyright, you could get it by way of an assignment as stated in Section 18 of the Act. This can be undergone by the owner of an existing or future copyright holder, the assignment can be whole or in part. This assignment shall take effect only when the work comes into existence. Noting also that this assignment shall be valid only under the sign of the assignor or his duly authorized agent.
There are other ways too, such as by relinquishment of the copyright by the owner or granting a license. Explaining all the modes will make this article similar to an answer I would write in my Copyright exam, during my Law School days. Being a blog, I’ll keep to the economy of words.
On a lighter note, you still can become the owner of the copyright when the copyright in the work expires. Though, for that you would have to wait for the completion of 60 years after the death of the artist. Which is not recommended, though the permanence of the tattoo can be a win in case you outlive him or her.
Ergo, I would like to conclude by saying it’s not just enough to be super picky about a tattoo artist and concentrate solely on the design, repute and, safety. Make sure there is an express terms and conditions that the artist possess as well as have a discussion with the artist about the Intellectual Property rights. If you are really serious about the ownership of the tattoo and are investing a huge portion of your time, effort, money and skin it is wise to consult a legal expert before you get inked. This is essential for celebrities that feel that a tattoo is a part of their brand and identity. Speaking of celebrities, if you want to copy a tattoo that you saw on your favorite movie star, music God or Sports legend, do make sure you aren’t infringing their copyright too. It is wiser to bear the pain just once and be done with it, be it a tattoo or a legal agreement for its ownership.