TATTOOS AND PUBLICITY RIGHTS: ISSUES IN INDIA

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In this article the author expounds on the importance of legislature and the judiciary with
regards to multiple rights of the tattoo artists and the tattoo holders. The author elucidates
upon the intent of the legislature by discussing the provisions of the Copyrights Act, 1957
and provides for possible solutions that would facilitate the law in a better manner.

INTRODUCTION

The problems with relevancy and importance of the copyrightability of tattoos became
important when the world’s interest was brought into a suit against Warner Bros by Victor
Whitmill, a tattoo innovative man or woman, for an imitative tattoo of an actor inside the
Hollywood film Hangover-2 that imitated the tattoo created and designed by him 1. This
incident raised many raging issues in addition to the fixation, ownership and use of such
tattoos. it is pretty hard whether or not or now no longer tattoos created or designed via way
of means of tattoo artists are copyrightable.

The Berne Convention states that any ‘literary’ or ‘inventive’ paintings may be included
underneath copyright if there may be Associate in Nursing originality of concept and fixation
of expression. In India, tattoos fulfil the statutory situations for their copyrightability.
According to Section 13(1)(a) of the Copyright Act, 1957, any ‘artistic work’ that has
originality in its work must be included2.

FIRST OWNERSHIP OF COPYRIGHT

According to Section 17 of the Copyright Act, 1957, the writer of work is the proprietor of
the copyright. In line with the same, tattoos are frequently labelled as artistic works
underneath the Copyrights Act, 1957 and therefore, the tattoo artist is taken into
consideration to be the proprietor of the tattoo and not the tattoo bearer. However, Section
17(b) of the Copyrights Act, 1999, clarifies that any engraving created at the example of a
person shall stand due to the fact the ‘first proprietor of the copyright’, in absence of any

1
Katie Scholz, Copyright and Tattoos: Who owns your ink, IP Watch Dog (4th April, 3:03 PM)
https://www.ipwatchdog.com/2018/07/26/copyright-tattoos-who-owns-your-ink/id=99500/
2
Section 13(1)(a), The Copyright Act, 1957, No. 14, Acts of Parliament, 1957 (India).
contractual agreement to the contrary. In specific words, the man or woman on whom such
engraving has been made will be deemed the rightful proprietor of the copyright 3. However,
due to the lack of any judgement or any guidelines by any High court or the Apex court, the
issue regarding who knows the rights over a tattoo still remains at large.

PUBLICITY RIGHTS

The publicity rights are extensively accounted for in the subject of Intellectual Property as a
proper right, which protects a ‘renowned man or woman’ in opposition to any misusage, or
misappropriation of name, likeness or any other such battle with their personal identity.
These rights are elucidated as a large stack of rights vested upon a man or woman’s character
that is diagnosed on the idea of their public image, likeness, skills, traits, and fan-following4.

In India, publicity rights were revolving around numerous rights, which might be not directly
linked. Several courts have diagnosed the essence of publicity rights in this sphere. The
Madras Court relied upon the pronouncements of the Delhi High Court and held that after the
name of a famed Indian celebrity ‘Rajnikant’ is utilized in an unauthorized manner, it'd bring
about a violation of the publicity rights of his character and identity 5. Subsequently, the
landmark judgment passed by the Supreme Court of India deeply scrutinized the term ‘right
to privacy in a broader dimension6. Justice Kaul said in the judgment that each man or
woman has a proper to exercise a cover over his public image and character in a sanctioned
manner. It was also said that it turned into said that ‘right to publicity is a self-sufficient auto
regulating right that stops outsiders from inferring its personal life and value.

The actual problem with reference to publicity rights and copyrights withinside the present-
day situation is what might manifest whilst a tattoo artist sues a superstar for infringing his
rights over a tattoo. Indian Courts are yet to witness such disputes as the ‘tattoo industry’ in
India continues to bloom. In an exciting alternate development, the well-known Bollywood
actor Shah Rukh Khan was given the well-known ‘D’ tattoo registered for copyright
protection for his film ‘Don 2’ in his call-in 2011, for the reason that film’s complete variety
of products like caps, T-shirts, bags, etc. The logic behind this move was the registration of
the tattoo had been to defend the copyright of the tattoo layout born with the aid of using
Shah Rukh Khan and maintain the merchandising alive. In the United States, instances like
3
Section 17, The Copyright Act, 1957, No. 14, Acts of Parliament, 1957 (India).
4
Awasthy Sujth, Sports and IPR – An overview of the Indian Standards, Open Access Journal, The Law Bridge
(Apr. 8, 2022, 7:56 PM) http://thelawbrigade.com/wp-content/uploads/2019/05/Aswathy.pdf.
5
Shivaji Rao Gaikawad v. Varsha Productions, SCC Del. 2382 (2012).
6
Justice K.S. Puttuswamy (Retd.) v. Union of India, 10 SCC 1 (2017).
Reed v. Nike7 were looked up amidst such circumstances. However, the Indian situation is
pretty complicated, as tattoo artists, if are given the rights which can mean joint rights with
the tattoo owners and if the tattoo artist tries to exercise such rights with the aid of using
reproducing his art, it shall infringe the publicity rights of the man or woman. As in
accordance with Section 14(c) of the Copyright Act, 1957 8, if inventive work so granted
copyright is original, the proprietor will be granted proper to problem copies, reproduce,
make variations or talk the paintings to the public. Even if the tattoo artist has rights over his
work, the alternative man or woman logically enjoys exposure rights over the tattoo, which
has made the design so famous before everything. Thus, this type of situation might suggest
that a superstar or that famous man or woman is paying royalties over his/ her popularity.

OTHER RIGHTS

Likewise, the writer or an artist additionally enjoys ethical rights other than financial rights,
that have been enshrined below Section 58 of the Copyright Act, 1957 9. In Raj Rewal v.
Union of India10, the courtroom docket witnessed a battle between ethical rights and
constitutional rights. In the existing case, an architect turned into petitioned for the
demolition of construction he designed and claimed this was prejudicial to his personal
goodwill. However, the courtroom docket rejected the argument stating ‘what cannot be seen,
cannot impede the writer’s reputation. This case declared that even Section 57 of the
Copyright Act, 195711 couldn’t save you the tattoo bearer from modification, elimination or
conciliation of his artwork. Therefore, making use of this precept in the current situation, it
may be assumed that publicity rights might defeat the financial and moral rights of Tattoo
Artists no matter the copyright ownership.

CONCLUSION AND THE ROAD AHEAD

Sadly, there are no direct regulations or precedents guiding the problem of the
copyrightability of tattoos. One such counselled approach to tackling such issues may be to
deal with tattoos as a service under Section 17 of the Copyright Ac 12t. However, in this
manner, the financial rights of the tattoo layout shall belong to the tattoo holder or bearer.
This is a large predicament and a really hard proposition to determine given that numerous

7
Reed v. Nike, Inc. et al 17 Civ. 7575 (LGS).
8
Section 14(c), The Copyright Act, 1957, No. 14, Acts of Parliament, 1957 (India).
9
Section 58, The Copyright Act, 1957, No. 14, Acts of Parliament, 1957 (India).
10
Raj Rewal v. Union of India, CS (COMM) 3/2018, IA No. 90/2018.
11
Section 57, The Copyright Act, 1957, No. 14, Acts of Parliament, 1957 (India).
12
Section 17, The Copyright Act, 1957, No. 14, Acts of Parliament, 1957 (India).
tattoo artists work as a freelancer and now no longer employ the tattoo bearer. Such
independent workers want protection for their work as numerous celebrities often get inked
through such waivers or assignments. Another counselled manner may be issuing an implied
license, which turned into diagnosis withinside the case of Solid Oaks v. 2k Games 13. Such
implied license shall act as a non-exclusive license furnished with the aid of using the tattoo
bearer which might lead to relief of financial issues for the tattoo artist.

Hashtags: Copyright, Tattoos, Intellectual property, Publicity, Ownership

Authored By:

Asutosh Kumar Singh

University Institute of Legal Studies, Panjab University

4th Year

13
Solid Oak Sketchers, LLC v. 2 K Games, Inc., 16-CV-724-LTS-SDA (2020).