TATTOOS AND PUBLICITY RIGHTS: ISSUES IN INDIA

The problems with relevancy and importance of the copyrightability of tattoos became
important when world’s interest was brought into a suit against Warner Bros by Victor
Whitmill, a tattoo innovative man or woman, for an imitative tattoo of an actor inside the
Hollywood film Hangover-2 that imitated the tattoo created and designed him 1. This incident
raised many raging issues in addition to the fixation, ownership and use of such tattoos. it is
pretty hard whether or not or now no longer tattoos created or designed via way of means of
tattoo artists are copyrightable at all.

The Berne Convention states that any ‘literary’ or ‘inventive’ paintings may be included
underneath copyright if there may be Associate in Nursing originality of concept and fixation
of expression. In India, tattoos fulfil the statutory situations for their copyrightability. As
according to Section 13(1)(a) of the Copyright Act, 1957, any ‘artistic work’ that has
originality in its work must be included2.

FIRST OWNERSHIP OF COPYRIGHT

According to Section 17 of the Copyright Act, 1957, the writer of a work is proprietor of the
copyright. In line with the same, tattoos are frequently labelled as artistic works underneath
the Copyrights Act, 1957 and therefore, the tattoo artist is taken under consideration to be the
proprietor of the tattoo and not the tattoo bearer. However, Section 17(b) of the Copyrights
Act, 1999, any clarifies that any engraving created at the example of a person shall stand due
to the fact the ‘first proprietor of the copyright’, in absence of any contractual agreement to
the contrary. In specific words, the man or woman on whom such engraving has been made
will be deemed rightful proprietor of the copyright 3. However, due to lack of any judgement
or any guidelines by any High court or the Apex court, the issue regarding who knowns the
rights over a tattoo still remain at large.

PUBLICITY RIGHTS

The publicity rights are extensively accounted for in the subject of Intellectual Property as a
proper right, which protects a ‘renowned man or woman’ in opposition to any mis-usage, or
misappropriation of name, likeness or any other such battle with their personal identity.
These rights are elucidated as large and stack of rights vested upon a man or woman’s
1
Katie Scholz, Copyright and Tattoos: Who owns your ink, IP Watch Dog (4th April, 3:03 PM)
https://www.ipwatchdog.com/2018/07/26/copyright-tattoos-who-owns-your-ink/id=99500/.
2
Section 13(1)(a), The Copyright Act, 1957, No. 14, Acts of Parliament, 1957 (India).
3
Section 17, The Copyright Act, 1957, No. 14, Acts of Parliament, 1957 (India).
character that is diagnosed on the idea in their public image, likeness, skills, traits, and fan-
following4.

In India, publicity rights were revolving inside numerous rights, which might be not directly
linked. Several courts have diagnosed the essence of publicity rights on this sphere. The
Madras Court relied upon the pronouncements of the Delhi High Court and held that after the
name of a famed Indian celebrity ‘Rajnikant’ is utilized in an unauthorized manner, it'd bring
about violation of the publicity rights of his character and identity 5. Subsequently, the
landmark judgment passed by the Supreme Court of India deeply scrutinized the term ‘right
to privacy’ in a broader dimension6. Justice Kaul said in the judgment that each man or
woman has a proper to exercising a cover over his public image and character in a sanctioned
manner. It was also said that it turned into said that ‘right to publicity’ is a self-sufficient auto
regulating right that stops outsiders from inferring its personal life and value.

The actual problem with reference to publicity rights and copyrights withinside the present-
day situation is that what might manifest whilst a tattoo artist sues a superstar for infringing
his rights over a tattoo. Indian Courts are yet to witness such disputes as ‘tattoo industry’ in
India continues to be bloom. In an exciting alternate development, the well-known
Bollywood actor Shah Rukh Khan were given the well-known ‘D’ tattoo registered for
copyright protection for his film ‘Don 2’ in his call in 2011, for the reason that film’s
complete variety of products like caps, T-shirts, bags, etc. The logic behind this move was
due to the registration of the tattoo had been to defend the copyright of the tattoo layout born
with the aid of using Shah Rukh Khan and maintain the merchandising alive. In United
States, instances like Reed v. Nike7 were looked up amidst such circumstances. However,
Indian situation is pretty complicated, as tattoo artists, if are given the rights which can mean
joint rights with the tattoo owners and if the tattoo artist tries to exercise such rights with the
aid of using reproducing his art, it shall infringe the publicity rights of the man or woman. As
in accordance with Section 14(c) of the Copyright Act, 1957 8, if inventive work so granted
copyright is original, the proprietor will be granted proper to problem copies, reproduce,
make variations or talk the paintings to public. Even if the tattoo artist has rights over his
work, the alternative man or woman logically enjoys exposure rights over the tattoo, which

4
Awasthy Sujth, Sports and IPR – An overview of the Indian Standards, Open Access Journal, The Law Bridge
(Apr. 8, 2022, 7:56 PM) http://thelawbrigade.com/wp-content/uploads/2019/05/Aswathy.pdf.
5
Shivaji Rao Gaikawad v. Varsha Productions, SCC Del. 2382 (2012).
6
Justice K.S. Puttuswamy (Retd.) v. Union of India, 10 SCC 1 (2017).
7
Reed v. Nike, Inc. et al 17 Civ. 7575 (LGS).
8
Section 14(c), The Copyright Act, 1957, No. 14, Acts of Parliament, 1957 (India).
has made the design so famous before everything. Thus, this type of situation might suggest
that superstar or that famous man or woman is paying royalties over his/ her popularity.

OTHER RIGHTS

Likewise, the writer or an artist additionally enjoys ethical rights other than financial rights,
that have been enshrined below Section 58 of the Copyright Act, 1957 9. In Raj Rewal v.
Union of India10, the courtroom docket witnessed a battle among ethical rights and
constitutional rights. In the existing case, an architect turned into petitioned for the
demolition of a constructing he designed and claiming this as prejudicial to his personal
goodwill. However, courtroom docket rejected the argument stating ‘what cannot be seen,
cannot impede the writer’s reputation’. This case declared that even Section 57 of the
Copyright Act, 195711 couldn’t save you the tattoo bearer from modification, elimination or
conciliation of his artwork. Therefore, making use of this precept in the current situation, it
may be assumed that publicity rights might defeat the financial and moral rights of Tattoo
Artists no matter the copyright ownership.

THE HOPE

Sadly, there are no direct regulations or precedents guiding the problem for copyrightability
of tattoos. One such counselled approaches of tacking such issues may be to deal with tattoos
as a service under Section 17 of the Copyright Act 12. However, in this manner the financial
rights of the tattoo layout shall belong to the tattoo holder or bearer. This is a large
predicament and really hard proposition to determine given that numerous tattoo artists work
as a freelancer and now no longer employ the tattoo bearer. Such independent workers want
a protection for their work as numerous celebrities often get inked through such waivers or
assignments. Another counselled manner may be issuing an implied license, which turned
into diagnosed withinside the case of Solid Oaks v. 2k Games 13. Such implied license shall
act as a non-exclusive license furnished with the aid of using the tattoo bearer which might
lead to relief of financial issues for the tattoo artist.

9
Section 58, The Copyright Act, 1957, No. 14, Acts of Parliament, 1957 (India).
10
Raj Rewal v. Union of India, CS (COMM) 3/2018, IA No. 90/2018.
11
Section 57, The Copyright Act, 1957, No. 14, Acts of Parliament, 1957 (India).
12
Section 17, The Copyright Act, 1957, No. 14, Acts of Parliament, 1957 (India).
13
Solid Oak Sketchers, LLC v. 2 K Games, Inc., 16-CV-724-LTS-SDA (2020).