Tattoo ownership has been a point of debate in intellectual property rights conversations. Seeing as tattoos fit under the category of artistic work under section 13 of the Copyright Act 1957, it should qualify for copyright protection if it also fits the requirement of ‘originality’. For example, in 2011 Shah Rukh Khan was a copyright registration for his tattoo by the Indian Copyright Office. The reasoning behind this was that the tattoo was set to be on the merchandise and promotion material for his film Don 2 and registration would help protect the franchise alive. However, such cases bring light to various questions. Does the copyright belong to the artist or the person with the tattoo? If the answer is the former, would the personal liberty and privacy of the bearer be infringed? If ownership belongs to the bearer, how would this affect the creativity and innovation of the artist? While India has not had to face many cases relating to this area, precedents from other countries calls for the need to ponder the issue.
In Solid Oak Sketches, L.L.C. v. 2K Games, Inc. and Take-Two Interactive Software, Inc, the life like depiction of NBA players in the NBA 2K video game series included tattoos. Take-Two had acquired the rights to use NBA players’ likeness from NBA. Solid Oak had licensed agreements with the artists who tattooed the players (including LeBron James and Kobe Bryant) and filed a copyright lawsuit against video game creators. The Court held that the players had the implied license to use their own likeness. The artists were aware that they were public figures and could not expect them to cover their tattoos in the media. Similarly, in 2011, S. Victor Whitmill sued Warner Bros. for a scene in Hangover 2 where an actor was seen to get the same tattoo as Whitmill had designed for Mike Tyson. However, the case was settled before it could go to court.
Such cases makes intellectual property lawyers think. Tattoos, under present law in many regimes, could theoretically be registered for copyright protection as it could fall into the requirement of original artistic work. However, perhaps it is because we are evolving in a fast and innovative way that we are coming across more non-traditional types of intellectual property. Therefore, a revision of our current laws regarding intellectual property protection might be necessary. As of now, there is no legal guidance on how to approach copyright issues that limit the personal liberty and privacy of another individual – even though common sense would lead us to prioritize the latter. With increasing technological advancements and human development tattoos will only be the first of many similar issues to come.
Written by: Aathira Prakash Menon, 4th Year LLB Student at the University of Edinburgh, Intern at S. Bhambri and Associates.