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Steven Victor Whitmill, who was the artist behind the Māori face tattoo adorned by heavyweight boxer, Mike Tyson, sued Warner Bros. Entertainment Inc. for an allegedly imitative tattoo which was worn by an actor in the 2011 Hollywood movie, Hangover 2.  This case soon drew the attention of the world to the hitherto unknown aspect of copyrightability of tattoos.  In January 2016, the developers of the NBA 2K16 simulation videogame, were dragged to court by Solid Oak Sketches, who were the exclusive owners and licensors of copyright in tattoos inked on the bodies of National Basketball Association (NBA) players like LeBron James and Kobe Bryant, both of whom, featured in the videogame, alongwith their tattoos.  Solid Oak claimed that digital reproduction of the tattoos in the videogame was unauthorized, and had infringed their copyrighted works.  These two cases ignited a discussion regarding the copyright which tattoo artists enjoyed in tattoos created by them, including aspects such as ownership, fixation, parody, and fair use.  Apart from questions of copyrightability, it has been argued that tattoos adorned by celebrities also form indicia of their personality.  In such a scenario, the moral and economic rights of tattoo artists in respect of tattoo designs created by them, would inevitably clash with the publicity rights of the celebrity in respect of such tattoos.  

The aim of the present study is to discuss the various aspects of copyright in tattoo art, including issues such as ownership, fixation, parody, and fair use.  Apart from questions of copyrightability, it has been argued that tattoos adorned by celebrities also form indicia of their personality. 

While writing this Research Paper, the author has referred to relevant provisions of copyright law in various jurisdictions like India, the United States (US), the United Kingdom (UK), and continental Europe.  Since this is an emerging area of law, and increased conflicts are foreseen in the future, caselaw from the countries under study, has also been taken up for review.

Rights of Tattoo Artists

According to the Copyright Act, 1957, an engraving made at the instance of a person would make that person the first owner of the copyright[13].  Since tattoo art is made at the instance of the person on whose body such art is made, it means that the recipient, i.e., the person upon whom the engraving is made, should be the first owner of the copyright[14].  Logically too, one might argue that the ‘engraving’, i.e., the tattooed human body, cannot possibly be possessed by the tattoo artist[15].  A subsequent question which would then emerge, is that who would own the copyright over a tattoo - Would the tattoo artist be the owner of the copyright in the art form, or would his work be covered under ‘work for hire’?

Let us consider the case of football star David Beckham[16], to consider whether copyright protection for tattoos can also extend to design of these tattoos.  Beckham, who reportedly has 88 different tattoos across his body[17], got his wife, Victoria’s name tattooed in Devnagari[18] script, on the inner side of his left forearm[19].  What would be the position, if tomorrow, some other person were to replicate the very same tattoo design upon a t-shirt?  Can the tattoo artist successfully restrain such other person from doing so, by stating that such an act infringes upon his copyright?  The answer to this question would vary from case to case, and would depend upon whether the tattoo under discussion, was based on an ‘original’ design, or whether it could be traced back to some other existing design[20].  Until 1996, when its name got changed from ‘Victoria Terminus’ to ‘Chhatrapati Shivaji Terminus’, the name of this iconic railway station in Mumbai, was spelt exactly the same way as David Beckham’s tattoo.  Thus, it would, in the opinion of the author, be difficult to argue that a tattoo artist would own copyright over a name, which is written in a well-known language like Hindi, so that nobody else may reproduce it commercially without his permission.

A. Copyright in tattoos

The question of copyrightability in tattoos has been dealt with in a few lawsuits in the past, but since most of these claims, including the celebrated case of S. Victor Whitmill v. Warner Bros. Entertainment Inc.[21], were settled outside court, it has left the issue rather unsettled, and that too, for a considerably large period.  Whitmill revolved around the issue of whether the defendants could be permitted to use a Māori[22] tribal face tattoo which was created by the plaintiff, and inscribed on the upper left side of the face of heavyweight boxer, Mike Tyson[23], in the year 2003.  The defendants had used this tattoo design on the face of a character called Dr. Stuart Price, played by Ed Helms[24], in their 2011 movie titled Hangover 2 [25].  It was contended by the plaintiff that when he created the original tattoo for Tyson, it was agreed between the parties that the artwork would continue to be owned by him, and thus, by using the artwork in the movie, without his (plaintiff’s) permission, and without giving him credit for his creation, the defendants had violated his copyright[26].  It was contended by the defendants that “Congress never contemplated that flesh could embody a copyrightable work”[27], whereas the plaintiffs argued that this case was not about Tyson, his likeness, or his right to use or control his identity; rather, it was about the defendants’ wrongful appropriation of Mr. Whitmill’s art, and their unauthorized use of that art, separate and apart from Tyson[28].  As per the plaintiff, not only was the allegedly pirated tattoo used throughout the movie, but the defendants also used it during advertisements and promotions.  This unauthorized exploitation of the tattoo without Tyson, was at the heart of this dispute[29].  Thus, we are faced with several questions going forward - Can tattoos be made the subject matter of copyright?  Further, can a visual artist claim copyright over the design of the tattoo also, or is it only the subsequent reproduction of such a tattoo in the form of another tattoo, that is protected?  Can a tattoo artist’s copyright extend to the depiction of tattoos on an athlete’s body in a videogame or would this matter be covered squarely under the athlete’s image rights?

In Whitmill supra, the contention of the defendants that the intention of lawmakers was not to contemplate human flesh as a medium for fixation, and therefore, tattoos could not be accepted as a form of art, does not hold much water, because newer forms of expression have emerged rapidly during the last few years.  It is this aspect which makes copyright law rather dynamic in nature – for instance, computer aided design was unheard of two decades ago, and 3D printing or additive manufacturing technology is a reality today.  One of Judge Catherine D. Perry’s[30] remarks in Whitmill were that “the tattoo itself and the design itself can be copyrighted, and I think it’s entirely consistent with the copyright law”[31].  This assertion lays down an important proposition since it declares that tattoo designs can be the subject matter of copyright protection[32].  This, however, was not the first occasion when a tattoo designer had sought to sue for damages on grounds of copyright infringement for a tattoo design.  Previously, in February 2005, in Reed v. Nike[33], tattoo artist, Matthew Reed sued sports goods major Nike, and its advertising agency, Wieden+Kennedy, for copyright infringement for an advertisement featuring NBA[34] player, Rasheed Wallace[35].  According to the petitioner, the player approached him in the year 1998 wanting an Egyptian-themed family design.  Thereafter, he conducted his own research, and came up with a design, comprising of an Egyptian king and queen, and their three children, with a stylized sun in the background[36].  The $450 charge which Wallace paid him for the artwork was a small amount, since he expected to benefit from the exposure that his tattoo would have.  Thus, he claimed copyright in the ‘Egyptian Family Pencil Drawing’ created by him, based on his research and ‘original’ design.  According to him, this design gave the wearer of the tattoo, namely Wallace, a rather distinctive tattoo, illustrated by the fact that Sports Illustrated for Kids[37] used it in a feature asking readers to match each tattoo with the NBA player who wore it[38].  He wanted to have the Nike advertisement featuring Wallace and the tattoo, removed, and claimed compensation for the same.  Once again, this case, like most others, was settled outside of court[39].  

B. Originality in tattoo art

Probing a little further we find that noted copyright commentator, Prof. David Nimmer[40] propounded that the “body, even as augmented, simply is not subject to copyright protection”[41].  Thus, according to him, a tattoo on human flesh, could not be the subject matter of protection.  Nimmer was barred from disposing before the court as an expert witness in Whitmill on the plea of the plaintiff’s counsel that his proposition merely stated what the copyright law position ought to be, and hence did not constitute expert evidence[42].  From our understanding of copyright law, we know that the medium of expression is particularly important in determining copyrightablity of a particular work.  Thus, notwithstanding Nimmer’s views, there is certainly scope for further development of the law in this regard. 

From the above, the issue which needs further discussion is the aspect of ‘originality’.  In Whitmill, the question which arose was whether the tattoo design of the plaintiff was, in fact, just a replication of previously created Māori tribal art designs.  This takes us to the ‘idea-expression dichotomy’, which stands as one of the most basic foundations of copyright law.  It is possible that the design of the plaintiff could be an expression of the overall idea, which may have been borrowed from the Māori tribe’s earlier designs.  In that case, the artwork of the plaintiff would be regarded as a ‘derivative work’, and the plaintiff would have the right to claim ownership over his design.  At this point, let us take the case of film star Saif Ali Khan[43], who got his wife Kareena’s name tattooed on his inner forearm[44].  In this case, it may be argued that the artist who designed this tattoo, will be able to restrain the replication of the tattoo design on merchandise, because he may argue that this is an ‘original’ design since it uses different scripts in a unique way to combine the word ‘Kareena’ in a stylized manner.

C. Parody as fair use defense

The case of Solid Oak Sketches, LLC v. 2K Games, Inc.[45] examined the issue of incorporation of tattoo designs created by the plaintiff, on three-dimensional images of sports athletes by developers of a videogame.  The question before the court was simple - whether the tattoo artists who created five tattoo designs on three different NBA players, were entitled to any reward in case tattooed images of the players was used in multiple versions of the video games created by the defendants[46].  The defendants asserted several counterclaims, including that of fair use.  Applying the four-factor test[47] evolved by Story, J.[48] in the landmark case of Folsom v. Marsh[49], the court decided that the first factor[50], namely the purpose and character of the use, weighed favourably for the defendants.  It is important at this point, to mention that Folsom and certain other cases decided by Justice Story began to transform the discourse of the traditional legal and intellectual framework in the US[51], like never before. 

In the game, players like LeBron James[52], Kobe Bryant[53] and DeAndre Jordan[54], are clearly identifiable by their tattoos.  Thus, the defendants contented that they had simply transformed the tattoos from physical to digital form to ensure “general recognizability” of players in the game, rather than the original purpose for which the tattoos were created, namely to allow the players to express themselves through body art[55].  This contention, once again, found favour with the court.  Further, due to the reduced size of the tattoos and myriad other effects, the expressive details of the tattoos were clearly visible only when users were choosing their players in the game, and not when the game was in progress[56].  Moreover, in the video game, there were a total of 400 NBA players available for selection, and the tattoos appeared on only three players, thus, comprising only 0.000286% to 0.000431% of total game data, which appeared to be rather inconsequential in the context of the videogame[57].  Although the inclusion of the tattoos in a video game amounted to commercial use, the tattoos did not feature on any marketing or advertising material, and were therefore, incidental to the economic value of the videogame.  

The court determined the second factor, i.e., the nature of the copyrighted work, and once again, favoured the defendants because the tattoo designs had been previously published.  Thus, judging on the criterion of ‘originality’, the designs were more “factual than expressive” because they were based on common motifs or photographs, and not uniquely “expressive” or “creative” designs[58].  With respect to the third factor, i.e., the amount and substantiality of the work used, the court again favored the defendants because despite the tattoos being copied in their entirety, it was held that it was necessary to do so, to serve the purpose of accurately depicting the three players in question.  Regarding the fourth factor, i.e., the effect of the use on the potential market for or value of the work, the plaintiffs had conceded before the court that the tattoos as featured in the game, did not serve as a substitute for use of the tattoos in any other medium.  There was also no evidence that there was a market for licensing tattoos for use in videogames or any other media or that such a market was likely to develop.  Considering all these ingredients, the court held it to be a case of fair use, and granted summary judgment in favour of the defendants[59].

In Whitmill, the defendants contended that the replication of Tyson’s tattoo on Ed Helm’s face, should be treated as a parody because it was intended to be so.  However, Judge Perry commented on this aspect as well, and in dismissing this argument outright stated that “this was an exact copy.  It’s not a parody”[60].  Even though a mere depiction of Tyson’s tattoo in a comedy film would not amount to a parody in itself, but there is certainly scope to argue that it amounts to a parody if such a depiction contains a subtle indication or innuendo or commentary on the original piece of art, with comedic effect.  Just as a song which humorously comments on the voice or mannerisms of the original artist would constitute a parody, the author is of the opinion that the defendants could have made a similar claim in this case.  For instance, if the film simply depicts the same tattoo as Tyson on Helm’s face, it cannot be considered to be parody, but if the same movie, through dialogue or plot or character mocks the fact that Tyson has this particular tattoo, it could well amount to a parody.  However, till such time as we have a definite judicial pronouncement on this aspect, we will have to be guided by the observations of Judge Perry to glean some understanding on the matter at hand.

Publicity Rights of Celebrities

The right of publicity is widely accepted to be an intellectual property right which protects a person against the misappropriation of their name, likeness, or other indicia of their personal identity.  Even though publicity rights have not been brought within the ambit of a specific legislation in our country, there has been a fair degree of litigation revolving around these rights.  In a landmark judgment delivered by a nine-judge bench, the Supreme Court of India, in Justice K.S. Puttaswamy (Retd.) v. Union of India[61], clarified that all Indians enjoyed a fundamental right to privacy by virtue of Article 21 of the Constitution, subject to certain reasonable restrictions.  Historically speaking, celebrities in India have, for long, enjoyed a common law right to prevent the use of their image or personality by any other person[62].  Thus, if a company tries to convey an impression that a celebrity has endorsed a certain brand or product, they could be sued for the tort of passing off by the celebrity, in case prior permission was not sought for such endorsement[63].  In the last decade or so, we have seen an explosion of litigation on this issue of celebrity rights, also known as personality rights.  In this regard, cases involving eminent personalities like Amitabh Bachhan[64], Shilpa Shetty[65], Sonu Nigam[66], Rajinikanth[67], Phoolan Devi[68], Gautam Gambhir[69], Sushant Singh Rajput[70], Daler Mehndi[71], and Cyrus Mistry[72], immediately come to mind.  Such a concept, namely a celebrity enjoying an economic stake in his personality rights, has already been recognized before in other jurisdictions[73].  However, while the US recognizes a so-called right of publicity to allow the usage of one’s identity as an economic commodity, continental Europe’s legal tradition considers persona and business essentially incompatible[74].

Sanjay Kishan Kaul, J.[75], while discussing personality rights in his judgment in Puttaswamy, has elevated the issue of personality rights, to the status of a fundamental right to privacy, from its erstwhile status as a common law right: “The right of publicity implicates a person’s interest in autonomous self-definition, which prevents others from interfering with the meanings and values that the public associates with her”[76].  An individual, thus, has the sole right to authorize the commercial exploitation of his likeness or other attributes of his personality.  This is where the conflict with copyright law arises.  Given that the discussion of Kaul, J.  centres around Article 21 of the Constitution, it is reasonable to conclude that he considers this right to personality to be protected under Article 21.  From the above, the only logical conclusion that can be drawn is that post Puttaswamy, celebrities now enjoy a fundamental right to their personality and the story of their life, and they can enforce such a right against fellow citizens.  Theoretically speaking, this would mean that the makers of biographies or biopics will necessarily have to seek permission from a public figure, especially if the venture is a commercial enterprise.  

In ICC Development v Arvee Enterprises[77], the Delhi High Court held that publicity rights arise from the right to privacy, and inhere in an individual or in “any indicia of an individual’s personality like his name, personality trait, signature, voice, etc.”.  The Court further held that “the right of Publicity vests in an individual, and he alone is entitled to profit from it.  For example if any entity, was to use Kapil Dev or Sachin Tendulkar’s name/persona/indicia in connection with the ‘World Cup’ without their authorization, they would have a valid and enforceable cause of action” [78].  This understanding of publicity rights has been accepted, and followed thereafter, along the lines of the common law tort remedy of passing off.  In D.M. Entertainment v. Baby Gift House[79], it was observed that publicity rights also include the right to permit or prevent the commercial exploitation of one’s likeness or other attributes of one’s personality[80].  These propositions have thereafter been upheld in the cases of Titan Industries v. Ramkumar Jewellers[81], Tata Sons Ltd. & Anr. v. Aniket Singh[82].

In the ongoing case of Anil Kapoor v. Simply Life India & Ors.[83], the plaintiff’s counsel pointed to the unauthorized sale of merchandise, and selling of pictures with forged autographs and the jhakaas catchphrase, which is often used by the popular film actor.  On September 20, 2023, the Delhi High Court was pleased to restrain the misuse of the name, image, voice, and other attributes of persona, including the jhakaas catchphrase, of the plaintiff, by the defendants, for commercial gain.  Prathiba M. Singh, J.[84] passed an ex-parte interim order against several websites and platforms upon a lawsuit filed by the actor, alleging unauthorised exploitation of his personality and celebrity rights for commercial use.  The court observed that while there can be no doubt that free speech is protected, the same would be illegal when it “crosses the line” and results in tarnishing and jeopardising individual personality rights[85].  Even though this case does not deal with tattoo art as such, it goes a long way in discussing issues like individual personality rights, depiction of the image of a celebrity, and misuse thereof.

When we talk specifically deal with the aspect of depiction of an athlete’s image in a videogame, one question which comes to mind immediately, is whether the depiction of body art on the athlete’s body is one which is not already covered by an athlete’s image rights[86].  In Solid Oak Sketches[87], Judge Laura Taylor Swain[88] rightly observed that depiction of body art on an athlete in a video game was an aspect which should vest separately in the tattoo artist.  In order to make the character in the game properly resemble the athlete or sportsman, videogame developers may be permitted to recreate the body art of the athlete who is featured in the videogame, because it is a depiction of the athletes themselves[89].  Tattoos are often co-designed by athletes themselves, and are, many a times, specifically customized according to the personality of the athlete, thus forming a part of the personality rights of sportsmen.  Therefore, just as the pronounced scars or deformed nasal septum or crooked finger of an athlete would be recreated in a video game just to make the character in the videogame look like the athlete that it purports to be, the same should also be the position in the case of tattoo art on the body of the athlete, in question.  

For the sake of argument, even if we were to concede that it is the tattoo artist who owns the copyright over his work, the videogame developers may be able to take recourse to another provision of the Copyright Act, 1957, which deals specifically with the aspect of inclusion of artistic works in a cinematograph film, because videogames are, after all, cinematographic works[90].  The question over whether copyright over body art is owned by the tattoo artist or the athlete, requires further clarification.  However, learning from Solid Oak Sketches and other cases, videogame developers like Electronic Arts (EA Games)[91] have, in recent years, begun to obtain permission from tattoo artists before using their work in videogames.

Since the essence of the tattoo is interspersed with and becomes a part of the celebrity’s unique persona, ideally one might speculate that identifying and distinguishing instances of commercial exploitation of the overall persona which only incidentally happens to include the tattoo design, from the specific intentional exploitation of the tattoo design itself, might solve this problem.  However, this is easier said than done.  If there is the use of Tyson’s face tattoo as the graphical print on a rage of t-shirts, or for that matter, the logo of an apparel brand, it becomes clear that the design as an artistic work independent of its end-medium, which is the human body, has been infringed by virtue of the unauthorized imitation of the tattoo design.  However, in other circumstances, in the light of tattoo recipients’ implied license to publicly flaunt their tattoo, it becomes difficult to ascertain whether the commercial exploitation of or by the recipient of his own likeness automatically amounts to an unauthorized exploitation of the tattoo as well.  

In the US, cases have arisen wherein a tattoo artist who is the holder of copyright, sues a celebrity for infringing his rights in that tattoo.  What happens when a tattoo artist who is a copyright holder sues a celebrity for infringing his rights over the tattoo?  While Indian courts are yet to witness such disputes, they are not unknown to US courts.  In the case of Escobedo v. THQ[92], the facts were fairly similar to those in Solid Oak Sketches supra.  The plaintiff was a tattoo artist, who had inked a large tattoo of a lion on the body of American mixed martial artist, Carlos Condit[93].  Upon realizing that both the fighter and his tattoo had been featured in the video game UFC Undisputed[94], the plaintiff sued for damages.  Unlike Solid Oak Sketches, the court promptly ruled in favour of the plaintiff on the ground that the defendant had created an unauthorized derivative work.  This verdict was subsequently appealed by the defendants, and thereafter, settled out of court before a final order could be passed, not unlike almost every other suit on this aspect.  This has effectively left us without an answer to the question as to whether the right to allow the commercial creation of graphical reproductions of the tattoo for monetary benefit can be inferred as being part of the implied license[95].  While the facts of this case closely resemble the Solid Oak Sketches case, because of the scant amount of jurisprudence available on the subject, it is difficult to draw any inference based on this order as to the future judicial course of action.

In India, if tattoo artists were to be vested with copyright over their designs, either entirely or as joint authors alongwith the tattoo recipient, their rights under the Copyright Act would come into conflict vis-a-vis publicity rights which the latter enjoy over their tattoos.  Our law grants to the ‘author’[96] of the work, six economic rights in an artistic work, including rights to communicate the work to public, to reproduce it, to issue copies, and to make adaptations thereof[97].  Any attempt by the tattoo artist to exercise these rights would necessarily amount to an infringement of the exclusive publicity rights vesting with the individual.  Even if the artist were to assign or license his rights over the tattoo to the tattoo recipient, since the latter theoretically enjoys publicity rights on it, it would imply that the celebrity is paying royalties to enjoy what is, in fact, his own.

Vesting Ownership with the Artist

If ownership rights in tattoos were deemed to be vested entirely in the artist, it would have the strangely twisted effect of bypassing the recipient’s inherent right to control the use of his own body, so as to give effect to the artist’s exclusive right as the ‘owner’ of copyright in the body art created by him[98].  In addition, we have the question that many celebrities or other recipients of tattoo art are actively involved in the process of designing the tattoos, and in many cases, tattoos are customized, as per requirements of the individual.  Even in the case of Reed[99], the tattoo artist designed the art form based upon inputs given by the recipient of the tattoo, who was desirous of an Egyptian-themed family design.

As already mentioned above, another facet of such an arrangement, would be the rather piquant situation that could be created wherein the artist’s exercise of his right to communicate his work to the public would end up impeding the recipient’s freedom to display the tattoo in public or engage in any activity which would display the tattoo to persons other than the tattoo artist himself, which would end up defeating the very purpose for which the tattoo was created, in the first place[100].  In the United Kingdom (UK), an arrangement has been made wherein, the recipient, as the commissioner of the work, ought to necessarily have an implied license to use the tattoo for the purpose for which it was commissioned[101], which in this case, is to allow the recipient to display and flaunt the ornamental scar, in all its fine glory, which is essentially the reason why Tyson with his face tattoo et all, can freely appear before the camera without worrying himself about copyright infringement issues.

If we were to allow tattoo artists to claim copyright separately over depiction of body art in video games, tomorrow artists might also claim infringement of copyright whenever an athlete was to flaunt his tattoos in a commercial, either incidentally or otherwise[102], or where a tattooed athlete is depicted in a comic book or newspaper report.  Thus, as per the author, allowing such claims would be stretching the concept a bit too far, and would therefore, be unjust.  While one might argue that the solution lies in a midway approach which reconciles the recipient’s autonomous rights to control his body with the tattoo artist’s rights to commercially exploit his work, it is worthwhile to question where to draw the line between these two aspects.  

The Moral Rights Conundrum

Apart from economic rights, an author of a work also enjoys certain ‘moral rights’, under the scheme of the Copyright Act, 1957 [103].  One of the important rights available to authors of the work, is the right of integrity.  The author of a work can sue against any distortion, mutilation, modification, or other act in relation to their work, if the same is prejudicial to his honour or reputation[104].  Let us contemplate the situation wherein the recipient of a tattoo desires to remove or alter the tattoo.  Thanks to the concept of author’s special rights, he may never be able to alter or remove his tattoo without the permission of the artist[105], because the law invests only in the author, the right to distort, mutilate or modify the work, also permits him to recover damages in the event of any act in association with the work that affects his honour and reputation[106].  Going back to our earlier discussion of the ‘Kareena’ tattoo adorning the forearm of Saif Ali Khan, if he were to decide one fine morning that he did not quite like his tattoo anymore, and has another artist ink a new design over the existing one, it is quite possible that he would effectively become liable to both his tattoo artist, and also his wife, under these provisions.

A conflict between moral rights and constitutional rights has been witnessed before in the case of Raj Rewal v Union of India[107].  In this case, an architect petitioned against the demolition of a building which he designed, claiming that the reduction of his creative corpus was prejudicial to his reputation.  While rejecting his argument, the Delhi High Court held that what cannot be seen, cannot affect the reputation of the author.  The first thing that follows from Raj Rewal is that section 57 cannot prevent the recipient of a tattoo from concealing or removing his tattoo altogether, since the provision does not expressly prohibit removal.  This leads us to yet another pressing question: what other acts would be prohibited per section 57 (1) (b) of the Act?  Would a celebrity be permitted to modify his tattoo, if he so desired?

As seen in the previous section of this Paper, in our country, personality/publicity rights and the right to privacy are treated as two sides of the same coin.  The Supreme Court through its decision in Puttaswamy, has elevated the status of personality rights to that of a fundamental right through interpretation of Article 21, whereas on the other hand, the Copyright Act declares the statute to be the only source of copyright[108].  In Raj Rewal supra, the Delhi High Court held that unlike other copyrighted works, architectural work is attached to land, which is property in its own right, and thus, entitles its owner to the right to property.  Thus, the right to property which is a constitutional right[109], will triumph over moral rights, which are only statutory in nature.  Applying this principle, it can be assumed that publicity rights would, in all circumstances, defeat the moral and economic rights of the tattoo artists, since these arise from the Act, whereas publicity rights arise from the Constitution itself[110].  Thus, the way the law currently stands in India, a tattoo artist, despite having copyright over his designs would be left with no way of enforcing them.

The Road Ahead

One of the mechanisms suggested to tackle the conflict of overlapping rights is to treat tattoo art as works-for-hire, or commissioned works[111].  This way, the economic rights on the tattoo would belong to the tattoo recipient, who has commissioned them.  While some enthusiastic recipients come up with their own ingenious designs, in other cases, tattoo artists use pre-designed flash art images which are shared freely within the industry, borrow from somebody else’s previous works, or create custom designs.  In all the above instances, excluding custom works which are copyrightable, and flash art, which is already in the public domain and therefore, intrinsically ineligible for protection, the designs are essentially derivative works, and cannot be copyrighted.  As far as custom works are concerned, it would seem overly obvious that by virtue of being the artists’ creations, and as in most cases, exclusively owned by the artist themselves, the copyright in tattoo designs by themselves should be considered no different from ownership rights in other artistic works.  However, what sets tattoos apart from other ordinary artistic works is that this art form uses the human body as a canvas, thereby necessitating an investigation into whether the human body can be used as a legally admissible medium of expression.

The issue gets even more complicated because in most cases, designers are usually freelancers and not employees of the tattoo recipients, so their relationship may not always qualify as a ‘contract of service’[112].  As things stand today, in the absence of an agreement to the contrary, tattoo artists, being essentially freelancers, would be first owners of copyright of their work.  This is why several celebrities make their tattoo artists sign waivers or assignment deeds allocating all rights in their tattoo designs to them.  Another suggested route which has been suggested is that of an implied license, which is a non-exclusive license provided by the artist to the tattoo recipient, which was recognized by the court in Solid Oak[113].  However, owing to the status of fundamental rights which publicity rights enjoy in our country, pursuant to Puttaswamy, this would present the same problem of obtaining a license to exercise rights which already belong to the tattoo recipient, apart from the issues outlined above.

Comparing the options, the work-for-hire explanation[114] appears to be most logically consistent with tattooing practice.  Section 17(b) of the Copyright Act, 1957, provides that for photographs, paintings, portraits, engravings, and cinematographic films made “at the instance of any person”, such person owns copyright.  Although none of the specified works are made on the human body as a medium, tattoos may, by some long shot, be brought within the purview of “engravings”.  An amendment in this section could also be introduced to include body art, and such a provision would ensure that both publicity rights and economic rights are vested in the same person, i.e., the tattoo recipient.  However, all these solutions, i.e., implied license, work-for-hire treatment under section 17 (b), treating tattoo art as a ‘contract of service’ under section 17(c) and bringing a specific amendment to include body art under section 17 (b), would only address the issue of overlap in economic rights.  The conflict between the author’s inalienable right to integrity and publicity rights continues to persist, and therefore, it is essential to have some more legislative clarity on the demarcation between all these seemingly overlapping rights.

With the emergence of previously unimagined media of expression, this issue demonstrates the importance for copyright law to address the specific problems presented by them.  The Legislature must therefore, lay down a clear ambit for publicity rights, beyond what has been generally pronounced in court decisions.  In an ideal regime, the tattoo artist must be prevented from cashing in on the fame of the recipient, whereas the tattoo recipient must be prohibited from making profit solely on the basis of the artistic merit or unique design created by the artist.  Third parties, who seek to make commercial use of the tattoo art form, whether they are advertisers, film producers or brands who use celebrities for endorsements, must also be prevented from doing so, unless such representation is merely incidental, and meant solely for proper identification of the tattoo recipient.  Such an approach must be complemented with solutions for cases where misappropriation and legitimate use cannot be properly distinguished, even after a considerable degree of effort.

Constitutional Law:

1. Constitution of India.

2. U.S. CONST.

Statutes:

1. 17 U.S.C. (2022).

2. Copyright Act, 1957 (Act No. 14 of 1957),

International Conventions:

1. Berne Convention for the Protection of Literary and Artistic Works, 1886.

Caselaw:

1. Amar Nath Sehgal v. Union of India, 2005 (30) PTC 253 (Del).

2. Amitabh Bachhan v. Rajat Negi, 2022 SCC OnLine Del 4110.

3. Anil Kapoor v. Simply Life India & Ors., CS(COMM) 652/2023 (Delhi High Court), Order dated 20.09.2023.

4. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994).

5. Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 739 (1989).

6. D.M. Entertainment Pvt. Ltd. v. Baby Gift House & Ors., MANU/DE/2043/2010.

7. Emerson v. Davies, 8 F. Cases 615 (C.C.D. Mass. 1845).

8. Escobedo v. THQ, 2:12-CV-02470-JAT (D. Ariz. Nov. 16, 2012).

9. Estate of Presley v. Russen, 513 F Supp 1339, 1353 (DNJ 1981) (U.S.).

10. Folsom v. Marsh, 9. F. Cas. 342 (C.C.D. Mass. 1841.

11. Gautam Gambhir v. D.A.P. & Co. & Anr., CS (COMM) 395/2017 (Delhi High Court).

12. Gray v. Russell, 10 F. Cases 1035 (C.C.D. Mass. 1839).

13. Haelen Laboratories v. Topps Chewing Gum, 202 F 2d 866 (2nd Cir 1953).

14. ICC Development v Arvee Enterprises, 2003 (26) PTC 245 (Del).

15. Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.

16. Krishna Kishore Singh v. Sarla A. Saraogi & Ors., CS(COMM) 187/2021 (Delhi High Court).

17. Magna Publications Co. Ltd. & Ors. v. Shilpa S. Shetty, AIR 2008 SC 681.

18. Morrissey v. Proctor & Gamble Co., 379 F.2d 675, 678-89 (1st Cir. 1967).

19. Phoolan Devi v. Shekhar Kapoor & Ors., 57 (1995) DLT 154.

20. Raj Rewal v Union of India, CS (COMM) 3/2018 (Delhi High Court).

21. Reed v. Nike, 17 Civ. 7575 (LGS) (S.D.N.Y. May. 31, 2019).

22. S. Victor Whitmill v. Warner Bros. Entertainment Inc., 4:11-cv-00752-CDP (E.D. Mo. 2011).

23. S. Victor Whitmill v. Warner Bros. Entertainment Inc., No. 4:11-CV-00752 (E.D. Mo. June 21, 2011).

24. Shivaji Rao Gaikwad v. Varsha Productions, 2015 (62) PTC 351 (Mad).

25. Solid Oak Sketches, LLC v. 2K Games, Inc., 449 F.Supp.3d 333 (S.D.N.Y. 2020).

26. Sonu Nigam v. Amrik Singh (alias Mika Singh) & Anr., CS (OS) 372/2013(Bombay High Court).

27. Tata Sons Ltd. &Anr. v. Aniket Singh, CS(OS) 893/2002 (Delhi High Court).

28. Titan Industries v. Ramkumar Jewellers, 2012 SCC OnLine Del 2382.

Books:

1. Clement Gatley, Gatley on Libel and Slander (13th Edn.) (Sweet and Maxwell, 2022). 

2. Joseph Story, Commentaries on Equity Jurisprudence; As Administered in England and America (3rd Edn.) (C.C. Little and J. Brown, Boston,1843).

3. Rishika Taneja and Sidhant Kumar, Privacy Law: Principles, Injunctions and Compensation (1st Edn.) (Eastern Book Co., New Delhi, 2014).

Journals:

1. 104 IOWA L. REV. (2019).

2. 106 Marq. L. Rev. 2023.

3. 19 Law and Contemporary Problems (Spring 1954).

4. 22 J. INTELL. PROP. L. (2014). 

5. 25 Jeffrey S. Moorad Sports L. J. (2018).

6. 42 MITCHELL HAMLINE L. REV. (2016).

7. 7 Widener J.L. Econ. & Race (2016).

8. 72 WASH. & LEE L. REV. (2015).

9. 85 S. CAL. L. REV.

10. 90 Notre Dame L. Rev. (2014).

11. Berkeley Technology Law Journal, vol. 29, no. 3, 2015.

12. Bulletin of the Deccan College Research Institute, vol. 74, 2014.

13. IIC 2005, 36(5).

14. Int J Semiot Law (2023) 36.

15. Journal of Consumer Research, 2019, 46(3).

16. National Law School of India Review, vol. 31, no. 1, 2019.

17. The Indian Journal of Intellectual Property Law, vol. 12 (2022).

Articles:

1. Adrianna D. Chronis, “The Inky Ambiguity of Tattoo Copyrights: Addressing the Silence of U.S. Copyright Law on Tattooed Works”, 104 IOWA L. REV. 1483 (2019).

2. Advika Muralidharan, “An Inky Enigma: The Challenges Associated With Copyright Protection For Tattoos”, The Indian Journal of Intellectual Property Law, vol. 12 (2022), 99-127.

3. Brayndi L. Grassi, “Copyrighting Tattoos: Artist vs. Client in the Battle of the (Waiver) Forms”, 42 MITCHELL HAMLINE L. REV. 43 (2016).

4. Chandel Boozer, “When the Ink Dries, Whose Tatt Is It Anyway? The Copyrightability of Tattoos”, 25 Jeffrey S. Moorad Sports L. J. 275 (2018).

5. Daniel Birne, “Celebrity Culture, Individuality and Right of Publicity as a European Legal Issue”, IIC 2005, 36(5), 505-24.

6. Dominique Roux and Russell Belk, “The Body as (Another) Place: Producing Embodied Heterotopias Through Tattooing”, Journal of Consumer Research, 2019, 46(3), 483-507.

7. Emilie Smith, “Game On-Copyrighted Tattoos in Video Games as Fair Use”, 106 Marq. L. Rev. 1015 (2023).

8. Jennifer Commander, “The Player, the Video Game, and the Tattoo Artist: Who Has the Most Skin in the Game?”, 72 WASH. & LEE L. REV. 1947 (2015).

9. Jessica Torres, “Tattoos: Meaning of Tangible Medium in the 21st Century”, 7 Widener J.L. Econ. & Race 62 (2016).

10. Jordan S. Hatcher, “Drawing in Permanent Ink: A Look at Copyright in Tattoos in the United States” (April 15, 2005).

11. Matthew Beasley, “Who Owns Your Skin: Intellectual Property Law and Norms among Tattoo Artists”, 85 S. CAL. L. REV. 1137 (2012).

12. Melanie Stockton Brown, “Inking Cultures: Authorship, AI Generated Art and Copyright Law in Tattooing”, Int J Semiot Law (2023) 36:2037-2065.

13. Melville B. Nimmer, “The Right of Publicity”, 19 Law and Contemporary Problems 203-223 (Spring 1954).

14. Michael C. Minahan, “Copyright Protection for Tattoos: Are Tattoos Copies?”, 90 Notre Dame L. Rev.1713 (2014).

15. RAHUL MHAISKAR, “DEVANAGARI: A HISTORICAL OVERVIEW AND A STUDY OF WRITING STYLE IN AGA KHAN PALACE PHOTO GALLERY”, Bulletin of the Deccan College Research Institute, vol. 74, 2014, pp. 197-208. 

16. Reese, R. Anthony, “Copyrightable Subject Matter in the ‘Next Great Copyright Act’”, Berkeley Technology Law Journal, vol. 29, no. 3, 2015, 1489-534.

17. Samarth Krishan Luthra and Vasundhara Bakhru, “PUBLICITY RIGHTS AND THE RIGHT TO PRIVACY IN INDIA.” National Law School of India Review, vol. 31, no. 1, 2019, pp. 125-48.

18. Yolanda M. King, “The Enforcement Challenges for Tattoo Copyrights”, 22 J. INTELL. PROP. L. 29 (2014). 

Media articles:

1. “Artist sues Wallace over use of tattoo”, ESPN.com, February 17, 2005. 

2. “Saif Ali Khan flaunts Kareena’s name tattoo as he waves at paps, in pics”, Zeenews.com, September 27, 2021. 

3. Akanksha Arora, “Does David Beckham Really Have a ‘Victoria’ Tattoo Typo on His Arm? Here's The Real Story”, News18.com, April 30, 2023. 

4. Kimberlee Speakman, “David Beckham Reflected on His ‘Love’ for His 88 Tattoos in Cut Scene from Doc, Director Says”, People, October 19, 2023. 

Websites:

1. http://www.jstor.org/stable/26264698

2. https://delhihighcourt.nic.in/judges/court/cj_sitting/current

3. https://main.sci.gov.in/chief-justice-judges

4. https://people.com/david-beckham-talks-love-for-his-tattoos-in-cut-doc-scene-8363811

5. https://promesa.prd.uscourts.gov/content/us-district-judge-laura-taylor-swain

6. https://ssrn.com/abstract=815116

7. https://www.basketball-reference.com/players/w/wallara01.html

8. https://www.davidbeckham.com/about

9. https://www.ea.com/about

10. https://www.espn.com/nba/player/_/id/3442/deandre-jordan

11. https://www.espn.in/espn/sportsbusiness/news/story?id=1992812

12. https://www.espn.in/mma/fighter/_/id/2335243/carlos-condit

13. https://www.forbes.com/profile/kobe-bryant/?sh=5d72b4fbf75e

14. https://www.imdb.com/name/nm0005512/bio/?ref_=nm_ov_bio_sm

15. https://www.imdb.com/name/nm0451307/bio/?ref_=nm_ov_bio_sm

16. https://www.imdb.com/title/tt1411697/

17. https://www.imdb.com/title/tt1739256/

18. https://www.irell.com/professionals-david-nimmer

19. https://www.jstor.org/stable/26918425 

20. https://www.lebronjames.com/

21. https://www.moed.uscourts.gov/judge/catherine-d-perry

22. https://www.news18.com/viral/does-david-beckham-really-have-a-victoria-tattoo-typo-on-his-arm-heres-the-real-story-7682599.html

23. https://www.newzealand.com/int/maori-culture/.

24. https://www.si.com/si-kids

25. https://www.sportingnews.com/in/nba?gr=www

26. https://www.supremecourt.gov/about/members_text.aspx

27. https://www.today.com/video/ed-helms-talks-family-switch-weighs-in-on-the-office-spinoff-197928005836

28.https://www.wipo.int/treaties/en/ip/berne/#:~:text=The%20Berne%20Convention%2C%20adopted%20in,whom%2C%20and%20on%20what%20terms.

29.https://zeenews.india.com/photos/entertainment/saif-ali-khan-flaunts-kareenas-name-tattoo-as-he-waves-at-paps-in-pics-2397737/saif-ali-khan-spotted-with-kareena-tattoo-2397742

1. Adopted in 1886, it provides creators such as authors, musicians, poets, painters etc. with the means to control how their works are used, by whom, and on what terms. It deals with the protection of works and the rights of their authors, and is based upon three basic principles. It contains a series of provisions which determine the minimum protection to be granted, as well as special provisions available to developing countries that want to make use of them. Available at https://www.wipo.int/treaties/en/ip/berne/#:~:text=The%20Berne%20Convention%2C%20adopted%20in,whom%2C%20and%20on%20what%20terms. (Last visited on September 29, 2023).
2. Berne Convention for the Protection of Literary and Artistic Works, art. 2.8.
3. Berne Convention for the Protection of Literary and Artistic Works, art. 2.9.
4. Copyright Act, 1957 (Act No. 14 of 1957), s. 13 (1) (a).
5. 17 U.S.C., § 101 (2022).
6. Michael C. Minahan, “Copyright Protection for Tattoos: Are Tattoos Copies?”, 90 Notre Dame L. Rev.1713 (2014) at 1714-5.
7. Matthew Beasley, “Who Owns Your Skin: Intellectual Property Law and Norms among Tattoo Artists”, 85 S. CAL. L. REV. 1137, 1164–66 (2012).
8. Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 739 (1989).
9. See Morrissey v. Proctor & Gamble Co., 379 F.2d 675, 678-89 (1st Cir. 1967) (“When the uncopyrightable subject matter is very narrow, so that the topic necessarily requires, if not only one form of expression, at best only a limited number, to permit copyrighting would mean that a party or parties, by copyrighting a mere handful of forms, could exhaust all possibilities of future use of the substance.”) (internal quotation marks omitted).
10. Estate of Presley v. Russen, 513 F Supp 1339, 1353 (DNJ 1981) (U.S.).
11. Melville B. Nimmer, “The Right of Publicity”, 19 Law and Contemporary Problems 203-223 (Spring 1954) at 209-11.
12. Samarth Krishan Luthra and Vasundhara Bakhru, “PUBLICITY RIGHTS AND THE RIGHT TO PRIVACY IN INDIA.” National Law School of India Review, vol. 31, no. 1, 2019, pp. 125-48. JSTOR, https://www.jstor.org/stable/26918425. Accessed September 30, 2023.
13. Copyright Act, 1957 (Act No. 14 of 1957), s. 17 (b).
14. Melanie Stockton Brown, “Inking Cultures: Authorship, AI Generated Art and Copyright Law in Tattooing”, Int J Semiot Law (2023) 36:2037-2065 at 2039-41.
15. Dominique Roux and Russell Belk, “The Body as (Another) Place: Producing Embodied Heterotopias Through Tattooing”, Journal of Consumer Research, 2019, 46(3), 483-507.
16. First English football player to win league titles in four countries: England, Spain, US, and France. His career spanned 20 years with some of the most successful clubs in the world, namely, Manchester United, Real Madrid, AC Milan, LA Galaxy, Paris Saint-Germain, and the England national team, which he captained for six years. Available at https://www.davidbeckham.com/about (Last visited on September 15, 2023).
17. Kimberlee Speakman, “David Beckham Reflected on His ‘Love’ for His 88 Tattoos in Cut Scene from Doc, Director Says”, People, October 19, 2023. Available at https://people.com/david-beckham-talks-love-for-his-tattoos-in-cut-doc-scene-8363811 (Last visited on October 21, 2023).
18. Script which comprises of 48 primary characters, including 14 vowels and 34 consonants. It is the fourth most widely followed writing system, anywhere in the world, is being used for over 120 languages. See RAHUL MHAISKAR, “DEVANAGARI: A HISTORICAL OVERVIEW AND A STUDY OF WRITING STYLE IN AGA KHAN PALACE PHOTO GALLERY”, Bulletin of the Deccan College Research Institute, vol. 74, 2014, pp. 197-208. JSTOR, http://www.jstor.org/stable/26264698. Accessed October 12, 2023.
19. Akanksha Arora, “Does David Beckham Really Have a ‘Victoria’ Tattoo Typo on His Arm? Here's The Real Story”, News18.com, April 30, 2023. Available at https://www.news18.com/viral/does-david-beckham-really-have-a-victoria-tattoo-typo-on-his-arm-heres-the-real-story-7682599.html (Last visited on October 1, 2023).
20. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994) (quoting U.S. CONST. art. I, § 8, cl. 8.) (alterations omitted) (internal quotation marks omitted).
21. 4:11-cv-00752-CDP (E.D. Mo. 2011).
22. Second-largest ethnic group in New Zealand, after European New Zealanders, they are commonly known by the Māori name, Pākehā. They are active in all spheres of the country’s culture and society, with independent representation in areas such as media, politics, and sport. Around 1,70,000 Māori people also live in Australia. Available at https://www.newzealand.com/int/maori-culture/. (Last visited on September 19, 2023).
23. Former US professional boxer who competed from 1985 to 2005, and was nicknamed “Iron Mike” and “Kid Dynamite” in his early career. He later acquired the moniker of “The Baddest Man on the Planet”, and is regarded as one of the greatest heavyweight boxers of all time. He reigned as the undisputed world heavyweight champion from 1987 to 1990. Available at https://www.imdb.com/name/nm0005512/bio/?ref_=nm_ov_bio_sm (Last visited on September 19, 2023).
24. American actor and comedian, who was a correspondent on Comedy Central’s The Daily Show with Jon Stewart, from 2002 to 2006. He played the role of paper salesman Andy Bernard in the sitcom The Office (2006-2013), and starred as Dr. Stuart Price in The Hangover trilogy. He later starred in the comedy series Rutherford Falls (2021-2022), which he also co-wrote. Available at https://www.today.com/video/ed-helms-talks-family-switch-weighs-in-on-the-office-spinoff-197928005836 (Last visited on August 27, 2023).
25. American comedy film produced by Legendary Pictures, and distributed by Warner Bros. Pictures. It is a sequel to the 2009 film The Hangover, and the second instalment in The Hangover trilogy. Available at https://www.imdb.com/title/tt1411697/ (Last visited on September 3, 2023).
26. Supra Note 21.
27. Reese, R. Anthony, “Copyrightable Subject Matter in the ‘Next Great Copyright Act’”, Berkeley Technology Law Journal, vol. 29, no. 3, 2015, 1489-534 at 1496-98.
28. Supra Note 21.
29. Jordan S. Hatcher, “Drawing in Permanent Ink: A Look at Copyright in Tattoos in the United States” (April 15, 2005). Available at SSRN: https://ssrn.com/abstract=815116 (Last visited on October 9, 2023).
30. Senior US district judge of the US District Court for the Eastern District of Missouri. She received a Juris Doctor from Washington University in St. Louis in 1980, and became an adjunct professor of law at Washington University School of Law, where she taught there intermittently from 1981 to 1994. She also served as a magistrate judge of the District Court for the Eastern District of Missouri from 1990 to 1994. On July 15, 1994, she was nominated by President Clinton to a seat on the District Court for the Eastern District of Missouri. She was confirmed by the Senate on October 6, 1994, and received her commission the following day. She served as chief judge from 2009 to 2016, and assumed senior status on December 31, 2018. Available at https://www.moed.uscourts.gov/judge/catherine-d-perry (Last visited on September 3, 2023).
31. See Whitmill, No. 4:11-CV-00752 (E.D. Mo. June 21, 2011).
32. Emilie Smith, “Game On-Copyrighted Tattoos in Video Games as Fair Use”, 106 Marq. L. Rev. 1015 (2023) at 1028.
33. 17 Civ. 7575 (LGS) (S.D.N.Y. May. 31, 2019).
34. Professional basketball league in North America comprising of 30 teams (29 in the US and 1 in Canada). It is one of the most significant professional sports leagues in the US and Canada, and is considered the premier professional basketball league in the world. Available at https://www.sportingnews.com/in/nba?gr=www (Last visited on September 26, 2023).
35. A former professional basketball player, Rasheed declared for the draft in 1995, and played 16 seasons in the NBA. He belongs to Philadelphia, and after retiring from professional basketball, he has been associated with the NBA as a coach. Available at https://www.basketball-reference.com/players/w/wallara01.html (Last visited on September 28, 2023).
36. Brayndi L. Grassi, “Copyrighting Tattoos: Artist vs. Client in the Battle of the (Waiver) Forms”, 42 MITCHELL HAMLINE L. REV. 43 (2016) at 47.
37. Monthly spin-off of the popular weekly American sports magazine, Sports Illustrated. It was launched in January 1989, and includes sports coverage with less vocabulary and more emphasis on humour. One of the aims of the magazine is to market sports to children. Available at https://www.si.com/si-kids (Last visited on August 19, 2023).
38. “Artist sues Wallace over use of tattoo”, ESPN.com, February 17, 2005. Available at https://www.espn.in/espn/sportsbusiness/news/story?id=1992812 (Last visited on September 19, 2023).
39. Jennifer Commander, “The Player, the Video Game, and the Tattoo Artist: Who Has the Most Skin in the Game?”, 72 WASH. & LEE L. REV. 1947 (2015) at 1959.
40. Widely recognized as a foremost expert in copyright law, David Nimmer represents clients in the entertainment, publishing, and high technology fields. He has twice served as co-counsel representing clients before the US Supreme Court. Available at https://www.irell.com/professionals-david-nimmer (Last visited on August 29, 2023).
41. David Nimmer, “Copyright in the Dead Sea Scrolls: Originality and Authorship”, 38 Hous. L. Rev. 1 (2001), 29-30.
42. Advika Muralidharan, “An Inky Enigma: The Challenges Associated With Copyright Protection For Tattoos”, The Indian Journal of Intellectual Property Law, vol. 12 (2022), 99-127 at 105, 110.
43. Born Sajid Ali Khan Pataudi, he is a popular Indian actor and film producer who primarily works in Hindi cinema. He is the recipient of several awards, including a National Film Award, and seven Filmfare Awards. In 2010, he was conferred the Padma Shri, which is the fourth-highest civilian award in India. He is fluent in Bengali, Hindi, and English. Available at https://www.imdb.com/name/nm0451307/bio/?ref_=nm_ov_bio_sm (Last visited on October 7, 2023).
44. “Saif Ali Khan flaunts Kareena’s name tattoo as he waves at paps, in pics”, Zeenews.com, September 27, 2021. Available at https://zeenews.india.com/photos/entertainment/saif-ali-khan-flaunts-kareenas-name-tattoo-as-he-waves-at-paps-in-pics-2397737/saif-ali-khan-spotted-with-kareena-tattoo-2397742 (Last visited on September 29, 2023).
45. 449 F.Supp.3d 333 (S.D.N.Y. 2020).
46. Id.
47. Story, J. designed what later came to be known as the ‘four-factor test’: “Look to the nature and objects of the selections made, the quantity and value of the materials used, the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work”. Later, this four-factor test was adopted by Congress, and incorporated into § 107 of the US copyright law.
48. American lawyer, jurist, and politician who served as an associate justice of the US Supreme Court from 1812 to 1845. He is most remembered for his landmark decisions in Martin v. Hunter’s Lessee and United States v. The Amistad, and for his Commentaries on the Constitution of the United States, first published in 1833. Available at https://www.supremecourt.gov/about/members_text.aspx (Last visited on July 30, 2023).
49. 9. F. Cas. 342 (C.C.D. Mass. 1841.
50. 17 U.S.C., § 107 (2022).
51. Gray v. Russell, 10 F. Cases 1035 (C.C.D. Mass. 1839), Emerson v. Davies, 8 F. Cases 615 (C.C.D. Mass. 1845). See also Joseph Story, Commentaries on Equity Jurisprudence; As Administered in England and America (3rd Edn.), pp 930-43 (C.C. Little and J. Brown, Boston,1843).
52. American professional basketball player, who turns out for the Los Angeles Lakers in the NBA. Nicknamed “King James”, he is widely regarded as one of the greatest players in the history of the game, and is often compared to Michael Jordan in debates over the greatest basketball player of all time. Available at https://www.lebronjames.com/ (Last visited on August 29, 2023).
53. Former American professional basketball player, who spent his entire 20-year NBA career with the Los Angeles Lakers. He passed away in a helicopter crash, on January 26, 2020. Available at https://www.forbes.com/profile/kobe-bryant/?sh=5d72b4fbf75e (Last visited on August 29, 2023).
54. American professional basketball player, who played one season of college basketball for the Texas A&M Aggies, before being selected by the Los Angeles Clippers in the second round of the 2008 NBA draft. He currently plays for the Denver Nuggets in the NBA. Available at https://www.espn.com/nba/player/_/id/3442/deandre-jordan (Last visited on August 29, 2023).
55. Chandel Boozer, “When the Ink Dries, Whose Tatt Is It Anyway? The Copyrightability of Tattoos”, 25 Jeffrey S. Moorad Sports L. J. 275 (2018) at 280.
56. Supra Note 45.
57. Id.
58. Jessica Torres, “Tattoos: Meaning of Tangible Medium in the 21st Century”, 7 Widener J.L. Econ. & Race 62 (2016) at 70.
59. Supra Note 45.
60. Supra Note 31.
61. (2017) 10 SCC 1.
62. Rishika Taneja and Sidhant Kumar, Privacy Law: Principles, Injunctions and Compensation, p. 129 (1st Edn.) (Eastern Book Co., New Delhi, 2014).
63. Clement Gatley, Gatley on Libel and Slander, pp 856-57, (13th Edn.) (Sweet and Maxwell, 2022). The tort of passing off has often been extended by courts to adjudicate upon matters where publicity rights of celebrities has been in question.
64. Amitabh Bachhan v. Rajat Negi, 2022 SCC OnLine Del 4110.
65. Magna Publications Co. Ltd. & Ors. v. Shilpa S. Shetty, AIR 2008 SC 681.
66. Sonu Nigam v. Amrik Singh (alias Mika Singh) & Anr., CS (OS) 372/2013(Bombay High Court).
67. Shivaji Rao Gaikwad v. Varsha Productions, 2015 (62) PTC 351 (Mad).
68. Phoolan Devi v. Shekhar Kapoor & Ors., 57 (1995) DLT 154.
69. Gautam Gambhir v. D.A.P. & Co. & Anr., CS (COMM) 395/2017 (Delhi High Court).
70. Krishna Kishore Singh v. Sarla A. Saraogi & Ors., CS(COMM) 187/2021 (Delhi High Court).
71. D.M. Entertainment Pvt. Ltd. v. Baby Gift House & Ors., MANU/DE/2043/2010.
72. Tata Sons Ltd. &Anr. v. Aniket Singh, CS(OS) 893/2002 (Delhi High Court).
73. Haelen Laboratories v. Topps Chewing Gum, 202 F 2d 866 (2nd Cir 1953).
74. Daniel Birne, “Celebrity Culture, Individuality and Right of Publicity as a European Legal Issue”, IIC 2005, 36(5), 505-24 at 516-18.
75. Seniormost puisne judge of the Supreme Court of India, he earned his LL.B. Degree from Campus Law Centre, Delhi University in 1982, and enrolled as an Advocate on July 15, 1982. He practiced mainly in the Commercial, Civil, Writ, Original, and Company jurisdictions of the High Court of Delhi and the Supreme Court of India, and remained an Advocate-on-Record before the Supreme Court of India from 1987 to 1999. He was designated as a Senior Advocate in December, 1999, and was appointed as a Judge of the Supreme Court on February 17, 2017. Available at https://main.sci.gov.in/chief-justice-judges (Last visited on August 12, 2023).
76. Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.
77. 2003 (26) PTC 245 (Del).
78. Id.
79. MANU/DE/2043/2010.
80. Id.
81. 2012 SCC OnLine Del 2382.
82. Supra Note 72.
83. CS(COMM) 652/2023 (Delhi High Court), Order dated 20.09.2023.
84. Before being elevated to the Bench, she was a leading Intellectual Property (IP) lawyer in India, and had experience of handling several important matters across various domain areas of IP rights. In 2022, she became the first Indian judge to be elected as an Honorary Fellow of Hughes Hall, University of Cambridge. Available at https://delhihighcourt.nic.in/judges/court/cj_sitting/current (Last visited on October 5, 2023).
85. Supra Note 83.
86. Yolanda M. King, “The Enforcement Challenges for Tattoo Copyrights”, 22 J. INTELL. PROP. L. 29 (2014).
87. Supra Note 45.
88. Chief district judge of the US District Court for the Southern District of New York, she was appointed to the District Court for the Southern District of New York on July 11, 2000, and entered on duty on August 31, 2000. She graduated from Harvard University cum laude with a B.A. in Government, and from the Harvard Law School. She practiced law with the New York-based law firm of Debevoise & Plimpton until 1996, and then served as a Bankruptcy Judge for the Eastern District of New York till 2000. She received an honorary Doctor of Laws degree from Suffolk University, Boston, in 2008, and has taught as an Adjunct Professor at the Benjamin N. Cardozo School of Law, Yeshiva University. Available at https://promesa.prd.uscourts.gov/content/us-district-judge-laura-taylor-swain (Last visited on October 3, 2023).
89. Adrianna D. Chronis, “The Inky Ambiguity of Tattoo Copyrights: Addressing the Silence of U.S. Copyright Law on Tattooed Works”, 104 IOWA L. REV. 1483 (2019) at 1512.
90. Copyright Act, 1957, s. 52 (1) (u).
91. Headquartered in Redwood City in California, this company develops and delivers games, content, and online services for internet-connected consoles, mobile devices, and personal computers. Available at https://www.ea.com/about (Last visited on September 13, 2023).
92. 2:12-CV-02470-JAT (D. Ariz. Nov. 16, 2012).
93. Former American professional mixed martial artist, who competed in the Welterweight division in the Ultimate Fighting Championship (UFC), where he was the former Interim UFC Welterweight Champion. He had also fought in UFC’s sister promotion, namely the World Extreme Cagefighting (WEC), where he was the final Welterweight Champion. Available at https://www.espn.in/mma/fighter/_/id/2335243/carlos-condit (Last visited on September 11, 2023).
94. Mixed martial arts videogame developed by Yuke’s, and published by THQ. This game features UFC properties and fighters. Available at https://www.imdb.com/title/tt1739256/ (Last visited on September 12, 2023).
95. Supra Note 45 at 339, 343, and 346.
96. Copyright Act, 1957 (Act No. 14 of 1957), s. 2(d) (iii).
97. Copyright Act, 1957 (Act No. 14 of 1957), s. 14 (c).
98. Supra Note 39 at 1951.
99. Supra Note 33.
100. Copyright Act, 1957 (Act No. 14 of 1957), s. 14 (c).
101. Supra Note 39 at 1952, 1965.
102. See Note 33 - Such a situation has already arisen in the US, in Reed supra.
103. Copyright Act, 1957 (Act No. 14 of 1957), s. 57.
104. Copyright Act, 1957 (Act No. 14 of 1957), s. 57 (1) (b).
105. Copyright Act, 1957 (Act No. 14 of 1957), ss. 57 (1) (a) and 57 (1) (b).
106. Amar Nath Sehgal v. Union of India, 2005 (30) PTC 253 (Del).
107. CS (COMM) 3/2018 (Delhi High Court).
108. Copyright Act, 1957 (Act No. 14 of 1957), s. 16.
109. Constitution of India, art. 300-A.
110. See Puttaswamy, Supra Note 61.
111. Copyright Act, 1957 (Act No. 14 of 1957), s. 17 (b).
112. Copyright Act, 1957 (Act No. 14 of 1957), s. 17 (c).
113. Supra Note 45.
114. Copyright Act, 1957 (Act No. 14 of 1957), s. 17 (b).