Here’s a question for you – does a painting belong to the artist or a canvas? Do films belong to the directors and producers or the screen you saw it on? Do your headphones deserve credit for the latest Dua Lipa hit, or well Dua Lipa herself?
Unless you’re an anti-social rabble rouser who just wants to argue – chances are you would have sided with the artist in all these cases - When it comes to the ownership of art, the artiste always trumps the medium.
But what about tattoos?
Here, art is being created, but the medium is not lifeless. It's a living, breathing, thinking human being with their own rights. So does a tattoo artist lose rights over their artwork, or do they start owning their customers' arms, or legs, or even faces?
The question boggles the mind, but here’s a breakdown of what our laws have to say about the ownership of artwork.
Section 2 of The Copyright Act of 1957, describes artistic work as work that includes engraving, sculpture, painting, or a photograph. Section 13 says that as long as this artwork is fixed to a tangible medium the copyright shall remain.
If we were to put two and two together, then tattoos are clearly engraved and well, human skin is pretty tangible – so tattoos can in fact be copyrighted by the tattoo artist!
We can all agree Stu waking up with his Mike Tyson tattoo in Hangover 2 will go down in the Hall of Movie fame as one of the funniest scenes ever - but you know who wasn't laughing at that scene The film-makers!
That 64 second scene cost Warner Bros way more money than intended. S. Victor Whitmill, the artist who designed and made Mike Tyson's face tattoo, filed a case against Warner Bros, for not taking his permission to use the tattoo in the movie.
So, did he really have a case or was this a shot in the dark?
For that, we go back to 2003, when Mike Tyson effectively gave up all rights over a design he sports on his face. To be fair, not the weirdest thing he's done. The legendary boxer signed a tattoo release form stating that "all artwork, sketches and drawings related to my tattoo and any photographs of my tattoo are property of Paradox-Studio of Dermagraphics." - So yes, the tattoo artist absolutely had a case! And it’s not just us saying that, before the matter could go to trial, Warner Bros. arrived at an amicable settlement with Whitmill, details of which are not available to the public. So, despite the fact that the wrestler was actually himself a part of the film, the artist had the final say in the matter.
This issue presents a few pitfalls – if a person enjoys complete autonomy and control over their own artwork, this could enter a dangerous territory of controlling the autonomy of your canvas too. Case in point: what if Dwayne Johnson’s tattoo artist suddenly decides he wants his artwork covered up at all times? Would Dwayne Johnson stop taking his shirt off in public? Probably not!
But the law is written in black and white – and not only does the law grant copyright to the tattoo artist, it also grants them something called ‘Moral rights’ or right to Integrity! Which means that if any distortion, mutilation, or alteration of the artwork takes place that is detrimental to the author’s reputation – they can sue.
All in all, this is starting to sound like a very bad deal for the person actually getting the tattoo – is there nothing that protects their rights? Of course, there is!
Take for example removing a tattoo that you don’t want anymore. A very important case comes to mind – that of Architect Raj Rewal who went to the courts to try to stop the demolition of a building he had designed, citing that it will be a blow to his reputation. Here the court exclaimed that which cannot be seen cannot harm the author’s reputation. All in all, despite the laws granting the artist several rights, you can probably still get that ‘I love Dolly’ tattoo removed if you want to!
Coming back to the principal question we began with – what are the rights of the canvas when the canvas is a living breathing person?
In our country, publicity rights are almost synonymous with privacy rights, and have the importance of a fundamental right. So, what are Publicity rights? A person has protection against the misuse of their name, likeness or other markers of identity. Simply put, a person can protect their image from being used unfairly. Despite the fact that publicity rights are not explicitly enshrined in our laws, there have been several cases that involve this principle. And it’s also been held that publicity rights included the ability to allow or prohibit the commercial use of one’s appearance or personality traits.
It’s a double-edged sword to answer this question of copyright vs publicity – because while economic rights in artistic work are provided by law, including the right to transmit the work to the public, reproduce it, issue copies and so on, any effort by the tattoo artist to exercise these rights would be a violation of the individual’s own publicity rights. India is yet to see a case where these two rights butt heads, but it’s a not uncommon in other parts of the world.
That’s not to say that a person can never get the copyright for a tattoo they didn’t design. In fact, Shah Rukh Khan has a copyright for the tattoo design that he sported in the film Don 2! There are some methods to ensure that you get this legal right – granting a license, signing a contract with your designer, relinquishing a copyright are just some such ways.
Art is heartwarming, and powerful – but in this world where there’s art, there’s also big money. From sports stars in ads, to movie star blockbusters – it's fair to say that everyone wants a piece of the pie, so this argument isn’t going away anytime soon.
Also Watch:
Episode 1: The History and culture of tattoos in India
Episode 3: How much money does the tattoo industry make?
Episode 4: Why do people get tattoos? A look at the psychology behind getting inked
