Copyright

Tattoos: Can We Copyright That Too?


Those of you who watched The Hangover 2 might have noticed the tattoo on the face of one of the actors, that looked curiously similar to the one Mike Tyson, the famous boxer, has. Interestingly, the tattoo artist responsible for designing Tyson’s tattoo went to the Federal District Court, demanding that the screening of the movie be stopped on grounds of copyright infringement. He claimed that the movie producers didn’t seek his permission before using the same design on the face of Ed Helms, one of the lead actors in the film, and hence were guilty of infringing copyright.

However, it has now emerged that both parties have settled the dispute, with the terms of settlement being undisclosed. What is particularly interesting is the fact that while the concerned judge refused to delay the release of the film, some of her comments are worth reflecting on. Judge Perry was unabashed in her support of the tattoo designer, stating that had a “strong likelihood of prevailing on the merits for copyright infringement” and that most of the arguments put forward by Warner Bros. were “just silly”. However, she ordered the release of the film on the grounds of ‘public interest’ explaining that the harm to the public interest from stopping the release of the movie outweighed the harm to the plaintiff. She did not issue a written ruling but merely made oral observations, referring the matter to an arbitrator for a quick settlement instead.

I will focus on three main issues – (i) copyrightability of the tattoo, (ii) originality in the design and (iii) parody as a fair use defence.

Tattoos as a subject matter of copyright
One of the Judge’s remarks were that “the tattoo itself and the design itself can be copyrighted, and I think it’s entirely consistent with the copyright law.” This is important since it declares that tattoo designs can be the subject matter of copyright protection. One must keep in mind that this is not the first time that a tattoo designer has sought to gain damages on grounds of copyright infringement for a tattoo design. A few years earlier, there was a case of an NBA player being sued by the tattoo artist for ‘displaying’ his tattoo in a Nike ad. Again, this case, like most others, was settled out of court, so there is still no clear judicial pronouncement on this point. Probing a little further we find that noted copyright commentator, David Nimmer believes that the “body, even as augmented, simply is not subject to copyright protection.” Thus, according to him, a tattoo on human flesh, could not be the subject matter of protection. Nimmer was barred from disposing before the court as an expert witness on the plea of the plaintiff’s counsel that he was merely stating what the copyright law position ought to be and hence did not constitute expert evidence. While there may be several infirmities in Nimmer’s arguments, I find it to be an interesting stance since the medium of expression is particularly important in determining copyrightablity, and the medium of expression in this case being the human body, there is certainly scope for further legal treatment on this point.

Originality in the design
Another point that has been raised in subsequent debates on this point is the fact that the design itself is a replication of previously created Maori designs. There have been accusations that the plaintiff stole the design from previous Maori artwork and hence his claim over the design itself is dubious. However, I am not entirely convinced about this. This again brings to the forefront the idea-expression dichotomy and I reckon that the plaintiff’s design is an expression of the overall idea that may have been borrowed from the Maori tribe’s earlier designs. If that is the case, then there is no doubt that the plaintiff has the right to claim intellectual property ownership over his design, notwithstanding the fact that his design closely resembles that design forms of the indigenous Maori culture.

Parody as a fair use defence
The other possible argument for the defendants is that the tattoo replication on Ed Helm’s face was a parody and was intended to be so. However, Judge Perry commented on this aspect as well, and in dismissing this argument outright stated that “this was an exact copy. It’s not a parody.” However, I believe that this contention deserves a closer examination. Of course, merely depicting Tyson’s tattoo in a comedy film would not amount to a parody in itself, but there is certainly scope to argue that it amounts to a parody if there is a subtle indication or commentary on the original piece of art, with comedic effect. Just as a song that humorously comments on the voice or mannerisms of the original artist would constitute a parody, I think it is open to the defendants to make a similar claim in this case. For example, I would consider a commentary on the mere absurdity of getting a tattoo on one’s face as parodying the original piece of art. If the film, by means of dialogue or plotline mocks the very fact that Tyson has this particular tattoo, surely it should amount to a parody.

It is quite sad that we still don’t have a judicial pronouncement on this point, and till we do have one, we will have to go by Judge Perry’s remarks on the case to glean some understanding on the case at hand.

15 comments.

  1. AvatarDivs

    Am back.. after a hiatus… However Ive still been following the blog..

    Amlan.. y are you sad at not having a judicial pronouncement… i indeed feel that the ambiguity creates room for deliberation and debate… (But thats crazy me!!!)

    I must start off by saying excellent thing to think about.. this came to my mind as I was considering getting inked.. and yes did want to use something i found on the net…

    I would beg to differ from prof. Nimmer’s stance.. If 17 USC had to be strictly interpreted.. only fixation is demanded and in view of evolving technologies or ideas.. doesnt mandate a particular medium. Additionally, originality IMHO in this case should be guided by the tests of substantial similarity and prevalence of the design in the public domain.. However, that having been said, it is possible that a US court take cue from ABCKO v. Harrisson (The My sweet Lord case) may find innocent copying also liable for infringement… Its a qn calling for a lot of fact finding and discovery.. and I guiess I cans ee why ADR was chosen…

    Assuming that Parody as a defence was asserted, I however dont see much to that ground.. If I had to apply the 4 factors governing fair use,: a) purpose and charecter of use- leverage for the artist and movie; b)nature of the work- commercial/movies; amount and substantiality of the work- this is a dicey one, since the Maori culture bit may tip against the infringed work itself- anything in public domain may be amply copied… d) effect of use on market- err… beneficial to Warner..

    All this being said.. i think its a close call.. the other two aspects that come to my mind is Would VARA be applicable (I dont think so..) and what about violation of personality rights of tyson- in as much as it dilutes his image???

    Just some random thoughts.. thaks for the food for thought though…:)

    Reply
  2. AvatarD.Bheemeswar

    I think we can not copy right, if it has it comes under the art or paintings or drawings of esthetic sense; only the draw back is that those should not be available in the existing system of copyrights protected arts.

    Reply
  3. AvatarB P K

    Hey Amlan,

    Really nice post, or should I say, nice interpretation and compilation of all the news available on the net.

    But have you wondered that the settlement that is being claimed to be made, may not be due to the reason that there was indeed any sort of copyright infringement, but rather the Producers didn’t want to get involved into a costly litigation and shut Mr. Tattoo Artist up !!!

    The reason I say this is though Tattoo can definitely be copyrightable, and why not, its a piece of art, made on a tangible medium, perceivable by senses and recognized by common man… The Point is, who has the ownership over it..
    As far as I understand, ownership of a copyright lies with the Person who causes it to create unless stated otherwise by an agreement. (Something what has been mentioned in Section 17(b) of ICA, 1957) Further, getting a tattoo made, I believe should be a part of ‘contract for service’ and hence in this case, the person asking the ‘artist’ make such tattoo would be having the copyright over all such ‘arts’ (and for the instant case, if we also consider that the design was anyways a copy of some older art, from Mr.Maori’s book in this case, then no CR exists in any case, coz of application of provisions similar to Section 13(3) of ICA)..

    Keeping in mind that Mike Tyson, who is the real owner of the copyright (if any), was a part of the film, and that he had no issues even talking about the tattoo in there, i.e., he had information about it and still no grudges, leaves the ‘Tattoo Artist’ in no position to claim any copyright.

    Hence, in my view, it was just another frivolous lawsuit which had to be settled by the producers who generally have a practice to ‘think big’….

    p.s. Since my tattoo ‘artist’ didn’t get my sign any agreement or bond or anything of that sort, I am assuming that that’s the ‘practice’ elsewhere too…


    Prasahnt (with inputs from Surendra)

    Reply
  4. AvatarEvacarty

    Hi

    I’m pretty new to this forum and have only recently started reading this blog! Its amazing and comprehensive, to put it succinctly.

    Coming to the point in debate, I was writing my copyright law exam just a year back wherein one of the questions highlighted how a face artist (the make up person) in the movie industry filed a suit against an actress who copied his designs and went in public. My professor wanted us to comment on the copyright-ability of this face painting in the situation which was obviously just a figment of his imagination, however, with several practical implications.
    I actually ended up favouring the copyright-ability of such make up and facial art. my arguments were two fold:
    Under the India Copyright law, the definition of an “artistic work” does not bar such expression on a particular medium, say the human body. facial painting is a form of painting and as long as it is expressed on a medium, ANY medium, it satisfies the criterion of the act and qualifies for copyright protection.
    Even with respect to tattoos, the question of copyright-ability must be answered in the affirmative since a tattoo is nothing but an artistic engraving which is a form of artistic work in the Indian law.

    Please let me know if you guys agree/disagree with my logic.
    Thanks 🙂

    Reply
  5. AvatarPriyadarshini

    The question of law here reminds my of Saki’s satirical short story “The Background” where a man gets his back inked but since he’s unable to pay the artist, the artist’s wife gifts the “work of art” to the local municipality and how his life becomes a bureaucratic mess.

    I tend to agree with B P K’s line of reason that the real owner of the copyright to a tattoo ought to be the person who commissions the tattoo artist to get himself inked, otherwise would one who gets tattooed lose the right to show it to anyone without violating the tattoo artist’s copyrights? It’s really bizarre and Saki-esque. Especially considering that most people in the entertainment industry get tattoos in visible parts of their bodies.. they can not be expected to hide their tattoos every time or pay royalty (Re NBA player being sued by the tattoo artist for ‘displaying’ his tattoo in a Nike ad).

    An analogy would be the producer of a cinematographic work being the owner of copyright, though he doesn’t create/author any of the artistic works involved in cinematography. I haven’t consulted any books while writing this so correct me if I’m wrong. 🙂

    If the law indeed is interpreted otherwise, every tattoo artist ought to display “All rights reserved” at their parlours.

    Reply
  6. AvatarNilima Bhadbhade

    Dear Amlan,

    Perhaps sec 52(1)(u) of the Copyright Act might influence an answer in the Indian law.

    52. Certain acts not to be infringement of copyright
    (1) The following acts shall not constitute an infringement of copyright, namely,-

    (u) the inclusion in a cinematograph film of (i) any artistic work permanently situate in a public place or any premises to which the public has access; or (ii) any other artistic work, if such inclusion is only by way of background or is otherwise incidental to the principal matters represented in the film; …

    Reply
  7. AvatarGeeta Gulati

    Hi Amlan,

    It’s great to start the day with your interesting piece!!!

    It would have been great had the Judge given her observation and not allowed the parties to go for arbitration. It would have set a judicial precedent.

    However, my take on the issue is if the defendant can prove the tattoo was originally designed by him, then there is an infringement. I’ll not go to an extent as to where the design was used.

    Thanks!

    Cheers

    Geeta

    Reply
  8. AvatarSindhu Krishnah

    As far as i understand this, for a work to qualify for copyright protection, it must be original and be fixed in a tangible medium.No doubt Tattoos are works requiring immense artistic sense and imagination. The question I would raise here is whether it is the tattoo that is copyright-able or is it the stencil that is capable of copyright protection? This is a real gray area that has been left unexplored leaving open the whole concept to various interpretations.Can Human body be considered as a permanent Tangible medium? Will it satisfy the fixation criteria mentioned under the statute.I guess the term fixation has to be analyzed and interpreted.

    Reply
  9. AvatarSindhu Krishnah

    Fixed in a Tangible Medium of Expression- an original literary, artistic or intellectual work has a valid copyright as soon as it is written down or recorded in a manner sufficiently permanent or stable to permit it to be perceived, reproduced or communicated for a period of more than transitory duration.
    Transitory duration:A duration that has not been defined under the copyright act but has been interpreted as a period sufficient enough to let the work be perceived

    For copyrightability, fixation serves the purpose of requiring that a work have a physical embodiment that lasts long enough to need protection, and that in exchange for protection, the author contributed something of lasting value to society.With these purposes in mind, the fixation requirement for copyrightability should be interpreted to require that a work last long enough to need protection, be identifiable, and contribute to society enough to deserve copyright protection.(Misunderstanding RAM:
    Digital Embodiments and Copyright
    Kristen J. Mathews)

    Reply
  10. AvatarEvacarty

    Nilima,

    I beg to differ with your use of S. 52(u)….in my understanding 52(u) as it expressly stipulates, is to safeguard incidental inclusion of a copyrighted work. in the case at hand, that cannot be the case. the tattoo as per the script is actually an intentional part of it, not incidental. that is why they have express references to it in the movie. So in my opinion 52(u) might not be an apt line of defense.

    Reply
  11. Pingback: Copyright Infringement Cases of Tattoo Designs | Miami Legal Round Table

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