This might appear to be a very bizarre article as it discusses tattoos from a complete outsider’s perspective, from a lawyer’s perspective.
I am new to tattoos, only have gotten my first one last year. But I got a peek in this amazingly artistic world recently through a few friends. Last year, I ended up going for a tattoo convention too, and I was in awe. I won’t say that the awe arose out of a cultural shock because I have always been intrigued about getting tattoos. It was more about how it was much more than what meets the eye. The passion, the hard work, the skill and the enthusiasm that goes into the entire process.
Call it an occupational hazard, but it made me wonder what the Indian laws are doing to protect and promote this emerging artistic field. Don’t hate me for calling it an emerging field as I know it has been in existence for centuries now; I only use it in the sense of how people are becoming more open about it; and making it less about associating the word “scandalous” to it.
You might wonder what happens when artists try to copyright common designs.
Coming back to the legal aspects of tattooing, one of the basic questions that should arise are whether tattoos are copyright-able. So the answer to that one is positive. The Indian superstar, Shah Rukh Khan is apparently the first person in India to get his tattoo registered under his name.
The law on that aspect is pretty straightforward. Indian Copyright Act allows copyrights for artistic works. The controversy arises to answer in what form tattoos are copyright-able. It allows for registration for works in the form of paintings, drawings and engraving. So whether a tattoo on the body form can be registered or would require a 2D or a 3D form remains to be answered. A case law on the matter would give my curious, cat mind some relief but I need to just wait for that to happen.
Another basic thing about the copyright law that I’d like to clarify is that you need not register your artistic work so as to afford protection under the law. Registration is important only for infringement actions. So as long as you have converted your idea into a material form, whatever form it would be (Still wondering about the skin question), you are protected. You might wonder what happens when artists try to copyright common designs. I think that won’t be an issue as a copyright to subsist the design needs to be original. So the flash designs provided in studios or the designs known in public would be free from such artistic protection. It will be plain right strange if the case was otherwise.
The next question is regarding the ownership of the copyrighted tattoo. The law says the artist of the artistic work is the owner, which in the present case will be the tattoo artist. Let’s complicate things now! So if you are a tattoo artist working in a studio and you create the work under your employment, then the employer becomes the owner of the tattoo. The law allows for an exception though. This is when the artist and the person getting tattooed sign a contract to the contrary, the consequence being the latter will own the copyright. This would mostly be preferable where a brand value is associated to the tattoo, especially in cases of celebrities or highly customized personal designs. An example of the same can be Mike Tyson’s face tattoo, the rights to which were owned by Warner Bros. This led to them suing Hangover producers for that famous drunken night tattoo that Stu got in the movie.
The basis for the Indian Copyright act is to promote creativity and encourage artists; therefore, the law provides that even if this ownership shifts from the artist, there are some basic moral rights of the artists that need to be given recognition. These include acknowledging the fact that
- the artist designed the work
- ensuring that the work is not falsely claimed as another artist’s work.
- Another immensely important moral right is the right of the artist to claim damages in the cases of mutilation, modification, distortion which would be prejudicial to its honor/reputation.
These moral rights arise upon the registration of the copyright. This would open a Pandora’s box of confusion.
The first one being what will be the consequence of getting cover ups in terms of protected works. The matter would have certain peculiarity when it comes to tattoos because it needs to be weighed that whose interests prevail over whose – the tattoo artist’s integrity in the design or the person’s right on his body. Again, in cases of not so common designs, the parties might sign a contract to ensure protection. In most cases though, keeping in mind the constitutional right over a person’s body, the right to cover ups or removal will prevail.
Another thing that might come up when tattoos start getting copyrighted is what happens when artists take inspiration from the more famous designs. This is again associated to moral rights and another legal provision known as the right to reproduction.
There’s a very thin line between plagiarism and inspiration.
Keeping in mind the fact that the law exists to promote art, what will be allowed is references to be taken from the design. But the artist should maintain some degree of difference between the original and the new art work. Honestly, I am actually very confused about where the balance lies. On one hand, it needs to be considered that certain artists are inaccessible due to limitation of place and money and on the other, the need to protect the original artist and what he desires.
As is apparent from above, I am all questions. The lawyer in me would like to research like a crazy person and get back to you by getting a combined overview of what artists, clients and lawyers think about this matter.
Raise all your questions in this regard, and leave us a comment. We will try and answer all your questions. For any other information about tattooing, go through Tattoo Cultr.
Roshni Bansal is a Mumbai based lawyer, who enjoys reading, and exploring counter cultures.