Aranya Nath and Shreeja Shyama Praharaj, both fourth year students of KIIT School of Law, Bhubaneswar discusses the IPR protection related to tattoos in light of Indian Copyright Act, 1957
Tattoos are special kind of character designs which is found on skin parts of human beings, especially on film artist, stage performers to make them more impressive. But we never think of those persons who have the innovative skills to create such a beautiful & complex design. In our society, there is no doubt that copyright should be enabled for the high valued product. We need to understand the fact that with the dynamic changes in technology art forms are also changes at a rapid scale. Now a day we can see that many industries & companies have some tattoos to identify their company. A review has been found that in the USA as a result of the growth of tattoo industries businessman earns billion dollars. They have a legal framework also to protect it. Therefore it is my question in India can we protect the tattoos with the help of copyright? Whether the tattoo makers should be able to own the rights on the artistic feature created by them only? Is it enforceable up to which extent? All the queries of legal jurisprudence will try to explore the ideas of protecting tattoos so that one can’t infringe the artistic feature under section 51 of the Copyright Act 1957.
TATTOOS & ENFORCEMENT OF COPYRIGHT PROTECTION
Copyright protection generally protects the expression of ideas. Tattoos are also known as an artistic feature as the artist creates the design by their innovative skills. So it ought to be necessary to protect copyright protection. However, Indian Law doesn’t explicitly specify the need for a tangible medium of expression. Still, the Indian copyright office validates the artistic creation of tattoos that enables in the validation of tattoos as copyrightable works, the Indian Copyright Office, in 2011, granted Shahrukh Khan a copyright registration tattoo. There has not been any infringement concerning that still now.
To understand the applicability of copyright to tattoos, one must recognize that it is only original as the artist created the beautiful & complex design; therefore, tattoos become the Subject matter of the discussion. We know copyright has provided bundle of rights yet under sec 14 (c) (ii) of the Copyright Act 1957 it specified that copyright holder has the right to communicate the piece of work in the public domain. It must be noted that the provision relating to the communication of the artistic work is kept for artistic work only in the public domain which implies that the artist’s rights are entitled only for the artistic works only. Under Section 14(c) (ii) the artistic work must be concluded to the public. Therefore the tattoo artist has the right to control by stating the tattoo bearer to restrict the replication of the work under section 14 of the Indian Copyright Act 1957. As a result, any violations led to imposing constitutional rights under Article 19 and Art.21 of the Indian Constitution.
Generally, the tattoo is referred as artistic creations of a copyright owner in practice under Section 17 of the Indian Copyright Act, stating the procedure of creation of tattoos would be subjected to an agreement to the contrary and it is not so hard to state that the more well- established tattoo artists, in specific, would be informed of an intention to maintain their art work’s copyright ownership. It stated that before getting a tattoo, along with the form that is given to the customer for acknowledgement, it is likely to state that a design that had been chosen would be of another tattoo artist which may end up sporting another artist’s intellectual property. As we know that an artistic creation holds IP protection, therefore, the person who holds apart from the main artist also has a right to control, and a question can be raised how to exercise the right to control.
We all know that copyright provides a bundle of rights under section 14, with regards to the section copyright owner need to communicate the work in a public forum which is mentioned under section 14(c) (ii). It should be noted that the artwork should be communicated not the copies/ design patterns of the artistic work.
If the person who has been assigned by the assignor failed to perform his duties, then the copyright board on receiving the complaint from the assignor can easily revoke the assignment.
As we know about the relevancy of the section stated about the rights of the copyright owner under section 14 (c) (ii) therefore if it is found that someone else has copied the image of the tattoo and presenting the infringing copies in his or her names in the public domain then the filing of infringement suit wouldn’t be implementable as it is on the human body.
POSITION & IMPLEMENTATION OF US LAWS AND INDIAN LAWS
As far as concerned US Laws have the provision for the subject matter to be copyrighted in the view of mainly three parameters i.e. the originality, authorship & the fixed piece. These three parameters are stated because there’s ambiguity is there whether the art is the original or it is the infringing copies. Because the infringing copies which are carried out by the illustrator earn a lot of market potential. Therefore it is required to ensure that the work has originality in nature which also ensures that the art of work has authorship in nature & the artwork is of the fixed piece so that there’ll be no ambiguity related to infringement. If all the parameters succeed then the subject matter is copyrighted in the US
Whereas in India it is not related to the IP protection concerning tattoos because though tattoo itself is a design so it must have copyright because it has been observed that one of the NBA players was sued for copyright infringement under sec 51 of Copyright Act 1957 for displaying the tattoo in the Nike advertisement. But it was settled outside court which seems that there’s no clear judicial pronouncement for the IP protection of the tattoos. Another point is that the replications of original designs i.e. maroari artwork that led to cause lots of accusations that the opponent has infringed the designs so in this instance the artist has the right to claim intellectual property ownership over the design. Still, it is sad for the artist that there’s no direct judicial pronouncement to protect their creations.
TRADEMARK & TATTOOS
Trademark is defined as a logo that can be a tattoo that will distinguish a company and its product enclosed in ROC. Logos can be distinguished as tattoos also. Imagine a company named “Lion’s Club” has given a logo as a tattoo of a lion. Ironically if someone tattooed the logo of a company on himself or herself, it doesn’t have any intention to befuddle any public member to be the creator of any particular goods & services. Imagine a company tattooed as “I * NY” is used by a person on his hand. The symbol * is available on the company’s product which could be proved in the court of Law as alleging the logo, therefore, the argument can be fought from two sides also which will be engaging in nature as a legal jurisprudence. Another question came in my mind whether I can trademark a tattoo. According to trademark law, we can trademark a tattoo. It is done for the promotion of products in the market. As an entrepreneur one needs to clear about the IP strategy, as trademarking a tattoo will lead to stop rivalry among the products concerning its identification. A tattoo is subjected to some regulations and limitations that would apply to any other picture or logo. It is much more important to look after that as many viewpoints are available for looking at tattoos and trademark, whether the tattoo can be trademark-able or it has a trademark tattooed onto someone’s body.
The clarity for IP protection is there as we have seen that Indian Copyright Laws did the registration for Shahrukh Khan’s tattoo that becomes the copyright assets. However, the variable in the equation is the scope and enforceability of the freedoms to be given to the parties. While the moral rights which include the promotion of tattoos within the presence of tattoo artists and imparting them their privileges whilst due are certainly implied, the discussion to be laid to the rest is the legislative right to be granted to either party. Another issue is about the enforceable of these rights so to enforce & safeguard these rights; we need a powerful establishment that will identify the magnitude of damage that copyright owners can seek without breaking the basic rights of the infringer. So it requires a long way to go in terms of tattoos and artist protection from infringement.
Aranya Nath and Shreeja Shyama Praharaj are fourth year students from KIIT School of Law, Bhubaneswar.
IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.