The Wall Street Journal recently carried a thought-provoking article on copyrightability of tattoos by tattoo artists; the article examined the issue in the context of incorporation of tattoo designs on 3-D images of sports athletes by video developers; the question was simple: when incorporating tattooed images of sports athletes in video games, should the tattoo artist who inked the athlete be given a cut?
The question has been dealt with in a few law suits in the past but most of the claims were settled outside court, leaving the issue fairly unsettled. A number of sub-issues emerge- Are tattoos copyrightable? Can a tattoo artist claim copyright over the design also or is it specifically its subsequent reproduction in the form of a tattoo that is protected? Can a tattoo artist’s copyright extend to the depiction of tattoos on an athlete’s body in a video game or is this matter covered squarely by an athlete’s image rights?
Are Tattoos Copyrightable?
Whether tattoos are subject-matter of copyright or not has attracted a great deal of debate. See Amlan’s post here.
According to the Berne Convention, for a literary or artistic work to be protected under copyright law, the two requirements of originality and fixation must be met.
Title 17 of the United States Code defines ‘fixation in a tangible medium of expression’ as embodiment of a work where it is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.
The tangible medium of expression in case of body art is ‘human skin’ and tattoos generally being of a permanent nature are capable of being perceived for more than transitory duration.
When Warner Bros. was sued by Missouri tattoo artist for depicting his Tyson design on the body of an actor in The Hangover Part II; the expert witness retained by Warner Bros. had argued, “Congress never contemplated that flesh could embody a copyrightable work.” This argument, in my opinion, does not hold much water- new forms of expression are rapidly emerging which makes copyright law dynamic; for instance, a decade back who would have thought that 3-D printing is a reality?
A subsequent question is who would own the copyright over a tattoo- Would the tattoo artist be the owner of the copyright or would his work be covered under ‘work for hire’?
According to S.17 (b) of the 1957 Act, an engraving made at the instance of a person would make that person the first owner of the copyright; this means that it is the person on whom the engraving is made who should be the first owner of the copyright. Logically too, one might argue that the ‘engraving’ (in this case, the tattooed human body) cannot possibly be possessed by the tattoo artist.
Does copyright protection for tattoos also extend to the design?
A question that might arise is whether the tattoo artist’s right would also extend to cases where the design is used in a form other than as a tattoo. Consider David Beckham’s tattoo:
Beckham has his wife Victoria’s name in Hindi script; the question is that if tomorrow someone were to replicate this design on a t-shirt, can the tattoo artist successfully restrain him from doing so on the ground that it is infringement of his copyright?
I think this would depend upon the particular tattoo in question and the ‘originality’ that one could attribute to the design: It would be difficult to argue that the tattoo artist owns copyright over a name written in a well-known language, such that nobody else may reproduce it commercially without his permission.
Take another example:
This is Saif Ali Khan’s ‘Kareena’ tattoo. Would the artist who designed this tattoo be able to restrain the replication of the tattoo design on merchandise- he might argue that this is an “original” design since it uses different scripts in a unique way to combine the word ‘Kareena’.
Athlete’s Tattoos- a part of their image rights?
When we talk specifically in the context of depiction of an athlete’s image in a video-game, the question that comes to one’s mind is whether the depiction of body art on the athlete’s body is one that is not already covered by an athlete’s image rights.
To me it is inconceivable that rights over the depiction of body art on an athlete in a video game should vest separately in the tattoo artist. Video game developers must necessarily recreate the body art of a sportsman featured in the video game so as to make the character in the game resemble the athlete and using the likeness of an athlete in a video game is not so much a depiction of the athletes’ tattoos as it is a depiction of the athletes themselves: the pronounced scars of an athlete would be recreated in a video game just to make the character in the video game look like the athlete that it purports to be (this is called ‘using the likeness of another’ in the context of image rights of a person).
Tattoos are often co-designed by athletes and specifically customized according to the personality of the athlete, thus forming a part of the personality rights of sportsmen.
Even if one concedes to the argument that it is the tattoo artist who owns the copyright over his work, the video game developers may take recourse to section 52(1) (u) of the 1957 Act which states that where the inclusion of any artistic work is incidental to the principal matters represented in a cine film, such inclusion would not amount to copyright infringement (Video games are cinematographic works).
The question over whether copyright over body art is owned by the tattoo artist or the athlete is not clear, however, video game developers like Electronic Arts (EA Games) are readily obtaining releases (permission of tattoo artists to prevent future lawsuits) before using their work in video games.
If we allow tattoo artists to claim copyright separately over depiction of body art in video games, tomorrow artists might also claim infringement of copyright where an athlete flaunts his tattoos in a commercial (a situation that has been contemplated before) or where a tattooed athlete is depicted in a comic; in my opinion, allowing such claims would be stretching it too far and would also be unjust.