Professional Documents
Culture Documents
Statutory Framework
Originality Requirement
Ownership Rights
Usually, the right of ownership rests with the creator of the work. Most experts
agree that a tattoo artist offers his or her client an implied license to display the
copyrighted work, but that license does not necessarily include all of the rights
afforded under copyright laws. The client may not have the right to make
reproductions or derivatives of the tattoo without the artist’s permission. This
position is prevalent largely in the US.
In the United Kingdom, if the person is getting a tattoo that is not his or her
original design, the ownership would lie with the tattoo designer with no
provision of ‘fair use’ to rely upon.
In India, the first owner of the copyright is the author of the work (in this case, the
tattoo artist). The Indian Copyright Office showed its approval for recognition of
copyright on tattoos when it granted a Copyright Registration to Shahrukh Khan
for a tattoo, which he sported in one of his films, thus showing that the person
getting the tattoo can also be the owner of the copyright.
However, a crucial question that comes up in regards to ownership is, what about
the works that are made for hire? In the case of tattoos, the consumer ‘hires’ the
services of the tattoo artist to create the work for him or her. Sometimes, the
design may be the customer’s design, and other times, it could be a result of joint
inputs by the tattoo artist and the customer, and sometimes it is simply the tattoo
artist’s design. These scenarios make it very difficult to answer questions about
ownership. The law regarding ownership of tattoos is not definite primarily
because there is no statute or judgment to seek guidance.
In defence of the tattoo artists’ rights to obtain the copyright, it may be said that
like painters, they, too, create art and have a right to copyright the same to retain
their originality. Also, as in the case of art collectors, the tattoo bearer may only
own the piece of art, and the copyright may still rest with the tattoo artist, and
royalty may be paid to the artist for replication, further sale, or incorporation of
this piece of art on various mediums. It can be argued that if you design the tattoo
yourself, then you own the copyright, as the artist simply tattooed your design
onto your skin. However, if you commission a tattoo artist to create a custom
design for you using your ideas, the copyright ownership is unclear. It would likely
be joint ownership based on previous cases relating to other types of art.
The issue of the copyrightable nature of tattoos gained attention because of the
movie Hangover Part II in 2011. One of the characters of the movie had a replica
of the famous Mike Tyson face tattoo. The tattoo artist had already registered the
design with the US Copyright Office and hence, sued Warner Bros. for copyright
infringement. Although no decision was ultimately passed in this case, in her
comments, Judge Perry supported the rights of the tattoo artist and stated that a
tattoo could be subject to copyright if it is an original work of authorship. She also
refused to accept Warner Bros’ strong contention claiming the use of tattoos as a
parody. According to her, the tattoo depicted a replica and thus couldn’t be called
a parody just because it got featured in a comic film.
Though it may fall in the category of fair use in the case of private users, the usage
becomes commercial when replicated by a company or when the design is worn
by a celebrity, and thus, may lead to infringement.
Licensing of Tattoos
Concluding Thoughts
The law regarding tattoos and their copyright is still ambiguous. To date, all the
high-profile cases regarding the issue have been settled out of court, implying
initiating the conversation but leaving everybody without any definite conclusion.
In a time where Intellectual Property Rights (IPRs) are getting recognized; and
artists are given due credit for their work, there is no reason to exclude tattoo
artists from enjoying the benefit of these acts. Many tattoo artists are getting
their original works registered, but due to the lack of specific legal guidelines, the
extent of their implementation remains questionable. Copyright law should
reward tattoo artists for unique and original designs. Eventually, the goal of
the Intellectual Property (IP) law is to promote the progress of science and arts.
Of course, as with all other artists, the tattoo ought to meet the originality
requirement to qualify for Copyright Protection. Many tattoo artists use original
designs for their clients instead of reproducing an already existing image, as
copying is discouraged and frowned upon in the tattooing industry by other
tattoo artists. These artists believe in furthering their creative designs. If the artist
created these designs through ink on paper rather than ink on skin, one would
have little doubt that the work warrants copyright protection and that the artist is
entitled to rights under the law. So, should the tattoo artist’s choice of medium
bar him or her from enjoying the rights that usually attach to the original works of
authorship? Well, clearly not. The cases of Warner Bros. and Shahrukh Khan being
granted copyright in tattoos are undoubtedly a step forward in recognition of
tattoos as copyrightable property. However, some issues that still need clarity are
the ownership of tattoos and the enforceability of rights once they are granted. It
could either be that tattoo artists are granted royalties for each picture,
endorsement, social media coverage, etc., or the customers could enter into
contracts that assign copyright ownership assigned to them every time they get a
new tattoo. With the popularity of tattoos, the courts are bound to address these
issues with more clarity in the coming times. ✅ For view source:
https://bit.ly/37mWTvq
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