The Copyrightability of Tattoos (II): Does Artist Interest trump the Right to Bodily Autonomy?

In my earlier post, I briefly outlined the issues associated with copyrighting tattoos specifically in the light of the use of the human body as a medium of expression. In this post, I will attempt to identify whether such use affects the copyrightability of the tattoo by pitting copyright ownership against bodily autonomy.

Vesting Ownership with the Artist: Why catastrophic

If ownership rights in tattoos were deemed to be wholly vested in the artist, it would have the strangely twisted effect of bypassing the recipient’s inherent right to control the use of his own body, to give effect to the artist’s exclusive right as the ‘owner’, by allowing only him to commercially license such bodily artwork regardless of the fact that such an exclusive power would violate the recipient’s publicity rights.

Further, the artist’s exercise of his right to communicate his work to the public under Section 14(1)(iv) of the Indian Copyright Act, would, absurdly enough ,impede the recipient’s freedom to display the tattoo in public or engaging in any activity that has the effect of displaying the tattoo to persons other than the tattoo artist himself – an intention that can reasonably inferred by tattoo artists in almost all instances, even before the inking process actually begins. A principle also recognized in the United Kingdom, the recipient, as the commissioner of the work, ought to necessarily have an ‘implied license’ of sorts (a non-exclusive license) to use the tattoo for the purpose for which it was commissioned, which in this case, is to allow the recipient to display and flaunt the ornamental scar, in all its fine glory – essentially the reason why Mike Tyson with his face tattoo et all can freely appear before the camera without worrying himself about copyright infringement issues.

To make things worse, the recipient would never be able to alter or remove his tattoo without the permission of the artist, thanks to Section 57(a) and (b) of the Indian Copyright Act that invest only in the author, the right to distort, mutilate or modify the work, also further permitting him to recover damages in the event of any act in association with the work that affects his ‘honor and reputation’. Thus, if Saif Ali Khan were to wake up one fine morning and decide that he didn’t quite like his  करीना  tattoo anymore, and has another artist ink a new design over the existing one, he would effectively become liable to his tattoo artist (and his wife !!) under both the provisions.

Incidental infringement ≠ Infringement?

The tattoo, in becoming a part of the person’s body, may also become an indica of his personality – particularly so in the case of celebrities. Thus, the right to appropriate any existing or potential commercial value in such ‘likeness’ would typically lie in the recipient’s own hands in instances where the tattoo is specifically used in association with such person, in an attempt to make references to his persona or being. In an earlier article published on the blog, Devika discussed the relevance of inclusion of body art on real-life based characters in video games as being merely incidental to the game itself and thereby not resulting in infringement (Section 52(1)(u) of the Indian Copyright Act), the intention being merely to construct an accurate depiction of the person so digitally rendered as part of a basketball videogame. The use of tattoos in NBA 2k16 has been intended at creating a realistic graphical representation of the players themselves, many of which may be rendered unauthentic if recreated minus the body art that adorns/mars their skin – possibly justifying the absence of any infringement of copyright in this case.

Because the essence of the tattoo is interspersed with and becomes a part of the celebrity’s unique persona, ideally one might speculate that identifying and distinguishing instances of commercial exploitation of the overall persona (that merely happens to include the tattoo design), from the specific intentional exploitation of the tattoo design itself, might solve this question. This however, is easier said than done. In certain cases, for instance –  like the possible use of Tyson’s face tattoo as the graphical print on a rage of t-shirts, or the logo of an apparel brand – it becomes clear that the design as an artistic work independent of its end-medium (the human body) has been infringed by virtue of the unauthorized imitation of the tattoo design. However, in other circumstances, in the light of tattoo recipients’ implied license to publicly flaunt their tattoo, it becomes difficult to ascertain whether the commercial exploitation of by the recipient of his/her own likeness automatically amounts to an unauthorized exploitation of the tattoo as well. Would the implied license thus only preclude the recipient from pure commercial exploitation of the tattoo by itself, or also from exploiting any portion of his likeness of which the tattoo forms part?

In another almost-identical case – Escobeda v THQ – a tattoo artist who inked a large tattoo of a lion on fighter Carlos Bandit, sued for damages after realizing that both the fighter and the tattoo had been featured in the video game UFC Undisputed – the Court promptly ruled in favour of the plaintiff on the ground that the defendant created an unauthorized derivative work. This decision was however appealed, and consequently settled out of court before a final order was passed – not unlike almost every other suit on the issue, effectively leaving us without an answer to the question as to whether the right to allow the commercial creation of graphical reproductions of the tattoo for monetary benefit can also be inferred as being part of the implied license. While the facts of this case imitate those in the NBA case, because of the extremely negligible amount of jurisprudence available on the subject, it is difficult to draw any inference based on this order as to the future judicial trend.

While one might argue that the solution lies in a midway approach that reconciles the autonomous rights of the recipient to control his body with the artist’s right to commercially exploit his work, it is worthwhile to question where one draws the line between the two. Further, would not ascertaining what inhibits the bodily rights of the recipient and what doesn’t, be an entirely subjective decision altogether?

Until the law comes up with a viable formula to decipher this seemingly impossible copyright equation, the only way out available currently appears to be to sign work-for-hire agreements (under Section 17 of the Indian Copyright Act) with tattoo artists to ensure that all the rights are signed over to the recipient, or including waiver clauses as a part of artist-recipient contracts that have the artists expressly waiving all rights associated with the tattoo.

With no way to gauge in whose favour the pendulum will swing, it’s no wonder that companies are in a crazed frenzy to get their players’ tattoo artists to sign off their rights – it’s certainly going to be fun to see the courts’ take on the subject.