n the year 2003, the Maori tribal design tattooed by the World Heavy Weight Champion Mike Tyson created a furore among the public. In the years to come, Mike Tyson’s tattoo became talk of the town and influenced celebrities from different walks of life.
The indelible inking culture or the culture of body art was prominent during the ancient times and have been used as a sign of status or as a style statement. With the industry booming large, the question that arises over here is whether body art is eligible for IP protection. If yes, who owns the body art? Although there are a fair amount of suits filed by the body artists, majority of the suits have been settled outside court thereby leaving the issue unanswered.
COPYRIGHT PROTECTION OVER BODY ART
A work or a creation shall be eligible for copyright protection when it satisfies the criteria of Originality, Ownership and Fixation. Any work which is independently created with a minimum amount of creativity is considered to be an original work. Therefore an original artistic work which is embodied in a tattoo or a facial makeup design shall be subjected to copyright protection. Copyright is bestowed to the owner of the respective work. The “author” of a work could be the body artist, the subject or both. To be copyrightable, an ‘original’ tattoo design must also be fixed in a tangible medium of expression.
The question that pops up over here is, whether the human body is in fact a ‘tangible’ medium of expression?
In Carell v. Shubert, it was observed by the Southern District of New York had affirmed that the human face is indeed a tangible medium and thereby satisfying the elements necessary for copyright protection that the stage makeup featured in the Broadway musical ‘Cats’ was protectable under copyright law.
ENFORCEMENT OF BODY ART AS AN IP RIGHT
i) Unauthorized Reproductions of Copyrighted Body Art
A person who reproduces substantial portion of the copyrighted work without the permission of the copyright owner is an infringer. Similarly the copyright owner of the pre-existing work has the exclusive right to prepare derivative works based upon that underlying copyrighted material.
Solid Oak Sketches, LLC v. Visual Concept:
Solid Oak Sketches, is a firm that owns and licenses tattoos. The plaintiff was the licensor of the tattoos inked by NBA players like Lebron James and Kobe Bryant. The plaintiffs sued the defendants on the ground that they made unauthorised reproductions of their tattoos which resulted in a copyright infringement. However, the case is pending before the Federal court for decision.
ii) Unauthorized Adaptations and Violations of Moral Rights
Substantial modification of a copyrighted work without permission of the copyright owner is a violation of adaptation rights and distortion of the artistic work would result in violation of the artist’s moral rights.
Whitmill v. Warner Bros. Entertainment, Inc:
The tattoo artist Victor Whitmill sued the defendant Warner Brothers for reproducing Mike Tyson’s Tattoo inked by the artist on the body of an actor in the movie “Hangover Part II”. However, the plaintiff and defendant opted for an out of court settlement.
The Indian Perspective:
Section 2 of the Copyright Act, 1957 defines an artistic work. The artistic works presumably includes body art within its ambit. Unlike the United States, Indian law does not explicitly specify the need for tangible medium of expression. In order to prove the same, The Indian Copyright Office in 2011 had granted Shah Rukh Khan a copyright registration for his tattoo.
TRADEMARKING BODY ART
Body art may be granted protection under the trademark law if the concerned body art is distinctive and identifies a source. The USPTO has granted trademark protection for the black and white geometric face makeup of the band Kiss.
The copyright granted to SRK on his tattoo goes to show that the tattoos and body art are subjected to copyright protection. However due to the lack of clarity in the enforcement of rights, it is advisable to consider copyright agreements to avoid disputes.