AXIS JURIS INTERNATIONAL JOURNAL

AXIS JURIS INTERNATIONAL JOURNAL

ISSN (O) : 2584-1378

INK AND INFRINGEMENT: OWNERSHIP OF TATTOOS UNDER IPR LAW

AUTHOR’S NAME : Gauri Haridas
UNIVERSITY - CMRU SOLS Bangalore

 

BACKGROUND

Tattoos, whether one loves it or despises it, has always been used in both an artistic and figurative sense. They portray a story that mystifies anyone who comes across it. In Western society, tattoos are becoming more widely accepted, yet there is still strong stigma associated with them in some social circles.  Numerous people get tattoos as part of travel, prestige and hierarchy markers, mystical and religious emblems, honors for courage, fertility markers, promises of love, pendants and charms, assurance, or even as a form of discipline, akin to the signs worn by eccentrics and prisoners.

INTRODUCTION

In several ancient and contemporary civilizations, tattoos are connected to soldiers and fighters. The following five groups can be used by the American Board of Dermatology (ABD) to categorize tattoos: Tattoos that are amateur, professional, cosmetic, medical, or trauma-related. Tattoos can be important in the field of forensics because they can be used as an additional or corroborating form of identifying. If left undisturbed, permanent tattoos can remain evident for ages; in fact, instances of them are frequently found in archeological settings where skin retention is permitted. Sometimes, it can cause discrimination among colleagues in the workplace. Although it does not currently forbid discrimination on the basis of tattoos or other kinds of body art, Title VII of the Civil Rights Act of 1964 in the United States shields workers and job candidates from employment discrimination based on race, color, religion, sex, and national origin. Furthermore, as long as they are implemented consistently and follow the rules set out by the Equal Employment Opportunity Commission, companies are permitted by federal law to implement grooming policies and clothing codes that mandate that employees conceal their tattoos while on the job. Employers may, for example, mandate that all workers conceal any visible tattoos; but they may not restrict this policy to men or individuals belonging to a particular racial or ethnic group.

TATTOOS UNDER COPYRIGHT LAW REALM

In India, from a legal standpoint, a tattoo is something that is permanently affixed to the skin, meaning that the person who gets it should be the owner. This has some intriguing implications. Artistic works are defined as “a painting, a sculpture, a drawing (including a diagram, map, chart, or plan), an engraving, or a photograph, whether or not any such work possesses artistic quality” under Section 2(c) of the Indian Copyright Act, 1957 (“Act”). A copyright also grants the author some moral rights under Section 57 of the Act, which are intended to prevent the author’s identity and the integrity of his or her work from being altered, destroyed, or mutilated. Since the individual with the tattoo has the right to body autonomy and may choose to have it removed or modified, it might be challenging to define the extent of moral rights in relation to tattoos. On the other hand, taking down or changing a tattoo would also be against the artist’s moral rights.

The choice for the tattoo artist to oversee and regulate the exercise and actions of the tattoo bearer is undoubtedly a violation of the rights and liberties guaranteed to us by Articles 19 and 21 of the Indian Constitution. A further argument supporting the tattoo bearer’s authorship rights is the tattoo artist’s status as an appointed representative. In support of tattoo artists’ claim to copyright, one may argue that, similar to painters, they are also creators of art who enjoy the right to protect the uniqueness of their work through copyright.

In Solid Oak Sketches, LLC v. 2K Games Inc. (2016), the yearly update for the basketball simulation game NBA 2K, which was developed by 2K Games, Inc. and Take Two Entertainment, the defendants, featured illustrations of NBA basketball players, including their tattoos. This game gained some traction. The NBA required Take Two Entertainment to pay a substantial sum of $1.1 billion in order to obtain the right to utilize its players’ names. NBA players and Take Two were had to obtain prior permission from Solid Oak by paying licensing fees, as a result of Solid Oak suing Take Two for copyright infringement for displaying their creative work in the video game. The defendants presented many arguments, one of which sought an order declaring that their use of the tattoos was limited to the use of the fair use doctrine. After the Court denied a petition for judgment on the pleadings, the defendants moved for summary judgment.

COPYRIGHT SUIT AGAINST KAT VON D OVER MILES DAVIS TATTOO

The photographer who took the portrait of the jazz artist Miles Davis, which inspired the tattoo, had filed a lawsuit based on copyright infringement. Star tattoo artist Kat Von D won a case in federal court on Friday when a jury decided unanimously that her tattoo of a picture of the legendary jazz singer Miles Davis did not infringe against copyright laws.
The trial was the most recent dispute over what constitutes “fair use” of copyrighted material, and it started this week in Los Angeles. The portrait of Davis taken in 1989 by the plaintiff, photographer Jeffrey Sedlik, was in question. The image, which featured Davis looking directly into the camera while holding up one finger to his lips, was featured on the cover of JAZZIZ magazine, a journal that celebrated the jazz community.

The attorney for Kat Von D, Alan Grodsky, stated on Friday that “this case should never have been brought.” “It took the jury two hours to reach the same verdict that everyone ought to have reached right away: that this was not an infringement.”

COPYRIGHT CASE AGAINST ANDY WORHOL

The Supreme Court limited the use of the fair-use argument to copyright infringement in the field of visual art on Thursday, ruling that Andy Warhol was not permitted to utilize a well-known photographer’s shot of Prince for an image of the singer that his estate leased to a magazine. Seven to two was the vote. The photographer’s “original works, like those of other photographers, are entitled to copyright protection, even against famous artists,” according to Justice Sonia Sotomayor, who wrote the majority opinion. She emphasized the fact that Prince’s picture licensing to magazines was a business venture shared by Warhol and the photographer whose work he modified, Lynn Goldsmith. Justice Sotomayor stated that a decision to the contrary may permit a variety of commercial photocopying for uses that are essentially identical to those of the originals. “The user could make minor edits to the original, sell it to an outlet to accompany a story about the subject, and claim transformative use—as long as he somehow portrays the subject of the photograph differently.” Chief Justice John G. Roberts Jr. and Justice Elena Kagan dissenting, they noted that the ruling “will stifle creativity of every sort.”

“It will hinder the creation of fresh literature, music, and art,” she wrote. It will obstruct the dissemination of novel concepts and the acquisition of novel insights. It is going to make the globe poorer.

CONCLUSION

Regarding the aforementioned examples, it is evident that tattoos are, in fact, assets that are protected by copyright. The question lies in the equation of the extent and enforcement of the liberties that will be granted to the involved parties. While it is undoubtedly inferred that moral rights such supporting tattoos in the presence of tattoo artists and granting them advantages when appropriate, the remaining topic to be discussed is the statutory rights that should be accorded to each party. It is still necessary to pay attention to the question of whether these rights can be enforced after they are granted. We require a strong basis that will determine the amount of harm that copyright owners may pursue without violating the fundamental rights of the infringement in order to protect and enforce these rights. There is still a lot of gray area because this is still a relatively new idea and there aren’t many instances where a precedent has been established.

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