When we get a tattoo, we assume it's yours. The design is inked on our skin, we paid an artist as well. However, this may not be the case under copyright law. The question is who actually owns a 'tattoo'? A tattoo is body modification where design is formed by inserting ink, dyes and pigments, either indelible or temporary, into the dermis layer of the skin.
The Copyright law provides copyright protection in artistic work, but are tattoos considered artistic enough to possess copyright? Who has the right of ownership over it? The question that arises in this context is whether the tattooed person owns the copyright to their tattoo. Unless the copyright in the tattoo was assigned to that person in writing, the
answer is no.
Tattoos are protectable under Copyright Law. Copyright protects pictorial and graphic works as long as they are fixed in a physical object and display originality. The requirement is that the expression must be original to the author and it possesses a minimal amount of creativity.
In the U.S. the applicable statute requires pictorial, graphic and sculptural copyright work to be original works of authorship fixed on a tangible medium of expression. Indian law does not explicitly specify the need for a tangible medium of expression. However, due to the permanent nature of the tattoos and the body being the tangible medium of expression, doubts against tattoo not being copyrightable, by definition is ruled out.
As such, the applicability of copyright to tattoos is on original and custom-made tattoos. Standard tattoo in catalogues or on walls of parlours is not considered. Originality is the principal ingredient, without which copyright does not exist. Efforts made by a tattoo artist in the imagination of the tattoo remain in the possession of the tattoo artist as well as the right
to gain from the copyrighted art also rests with him.
Thus, a tattoo design can be protected by copyright, provided it shows sufficient originality and is fixed on a physical or tangible medium. According to Section 17 of the Indian Copyright Act, 1957, the author of a work is generally considered the first owner of the copyright. A tattoo is classified as an artistic work under the Copyright Act,1957 and therefore the tattoo artist is considered the owner of the tattoo and not the tattoo bearer.
Section 14(c) (ii) of the Indian Copyright Act, 1957 only specifies that the copyright holder has the right to communicate the piece of work to the public. It must be noted that this provision relating to the communication of the artistic work to the public is in relation to artistic work, implying that the tattoo artist is entitled to the rights of the artistic work.
It can be said that the tattoo artist has the right to control and regulate the tattoo bearer’s actions which, by all means, violates the very right to freedoms promised to us by Article 19 and Article 21 of the Indian Constitution.
As painters create art and have a right to copyright to retain originality, tattoo artists too enjoy the right of ownership in the case of tattoos. Unlike in the case of art collectors, the tattoo bearer merely owns the piece of art and the copyrights of the designs rest with the tattoo artist and royalties are reimbursed to the artist for the reproduction of a tattoo.
Since the tattoo artist is the owner of the tattoo and the copyright of that tattoo rests with tattoo artist, the tattoo bearer bearing the tattoo on his body can also acquire the ownership of the tattoo by:
Independent Contract Agreement:
It is a contract between the tattoo artist and the tattoo bearer where the tattoo artist agrees to provide services as an independent contractor. This contract contains a proprietary information clause that states who will own the work These rights and interests are assigned to the tattoo bearer for whom the work has been done as per the contract.
Assignment under Copyright Act:
Section 18 of the Copyright Act talks about assignment which means, that owner of the copyright in an existing work or the prospective owner of the copyright in a future work may assign to any person the copyright, provided the assignment of copyright in any future work, the assignment shall take effect only when the work comes into existence.
Section 21 of the act talks about the right of author to relinquish copyright. The author here, in case of tattoos is the tattoo artist, who may relinquish all or any of the rights comprised in the copyright in the work by giving notice in the prescribed form to the Registrar of Copyrights.
Section 30 of the act talks about licensing where the owner of copyright in an existing work or the prospective owner of the copyright in any future work may grant interest in the right by license in writing signed by him.
Matters related to temporary or stick-on tattoos are not covered under copyright law and it does not amount to any infringement. It is to noted that copyright law cannot help merchandise manufactured goods based on copyrighted work for more than a certain point. It is clear that tattoos are copyrightable assets. However, in India, there are not many cases that have taken place for there to be a concrete decision to set a precedent. Most cases do not go to court and get settled outside of it.