Tattoos are not a new concept for Indians. Permanent or temporary skin tattoos have been prevalent in India for several centuries. Various tribes used to have their unique tattoo designs carved on their skin. Many Indian tribes still carry their old tattoos as a sign of their ancestors and culture.
However, in modern India, tattoos have outgrown the concept of cultural representation to a form of artwork & body decoration. Tattoo industry in India is growing at a rapid pace. It is important to note that the Tattoo Industry in India is expected to generate around Rs. 20,000 crores every year.
In this vast and rapidly growing industry, along with identifying the available business opportunities, it is also very important to understand the business risks associated with this business and the legal protection available to mitigate those risks.
Since tattoo designs are a type of artwork the major risk which is associated with the Tattoo business is the risk related to infringement of Intellectual Property Rights. In this article, we will discuss major questions related to the “Legalities of Tattoo Business in India”.
Q1: What is the Legal protection available to Tattoo Designs in India?
Ans: Tattoo designs being a form of artwork is covered under the definition of “Artistic work” as given under section 2(c) of the Copyright Act, 1957, hence protected under the Copyright Act, 1947. The Copyright Act defines artistic work as:
““artistic work” means, —
(i) 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;
(ii) a work of architecture; and
(iii) any other work of artistic craftsmanship;
Q2: Who is the Owner of Tattoo Design? Or, who can apply for copyright registration in a tattoo design?
Ans: One of the most important questions is to determine who is the owner of the tattoo design, Whether the Tattoo artist or the person who gets the tattoo on his body? This answer to this question can be derived from the definition of “author” as given under section 2(d) of the Copyright Act, 1957. It states that author means: –
- In relation to an artistic work other than a photograph, the artist.
Hence, it is clear that the tattoo artist who designs the unique tattoo is the copyright owner of that tattoo and ultimately, he can apply for copyright registration of that tattoo design.
Q3: Is it mandatory to register a copyright in a tattoo design to seek protection under the Copyright Act, 1957?
Ans: As per section 45 the Copyright act, 1957, it is not mandatory to register a copyright in a tattoo design to get protection under the Copyright Act. Once an artistic work is complete it automatically gets copyright. This can be interpreted from the language used in the section. This section states that “the owner of any copyright may make an application for registration”. Since the word “may” is used it denotes the discretionary nature of the legislature.
Further, Bombay High Court in the case of Sanjay Soya Pvt. Ltd. Vs. Narayani Trading Company also stated that Registration of copyright is not mandatory and depends on the owner’s discretion.
Hence, it is not mandatory to register a copyright in the tattoo design to be protected under the Copyright Act, 1957.
Q4: Can we use any tattoo design available in the public domain or on the internet (Youtube/Pinterest/Facebook/Etsy etc.) for commercial purposes?
Ans: No, we cannot use any tattoo design available in the public domain or on the internet or social media sites for commercial purposes without obtaining the express approval of the owner of that tattoo design irrespective of the fact whether such design is copyrighted or not because in the case of Sanjay Soya Pvt. Ltd. Vs. Narayani Trading Company we have understood that any artistic work available in the public domain is deemed to have copyright protection irrespective of whether it is registered under copyright act or not. So, using any design available on the internet (YouTube/Etsy/Pinterest etc.) amounts to Copyright Infringement and is prohibited.
Q5: Can we tweak an existing tattoo design available in the public domain, a little bit (say 5%-10%) and then use it for commercial purposes and claim it as our own for registration purposes?
Ans: No, we cannot use an existing tattoo design available in the public domain by tweaking it a little bit and the same is also not eligible for being registered under the Copyright Act, 1957, because a mere change of 5%-10% (only indicative) in the tattoo does not give it the nature of an original artistic work. It amounts to infringement of the copyright of the author.
The same was iterated by the Supreme Court of India in the case of R. G. Anand Vs. Delux Films, where it was held that it is not necessary that the alleged infringement should be an exact or verbatim copy of the original but its resemblances with the original in a large measure is sufficient to indicate that it is a copy.
Q6: Whether displaying a tattoo design available in the public domain on the website or any other platform without express approval of the author, amount to copyright infringement and is prohibited under the Copyright Act, 1957?
Ans: Yes, it amounts to infringement of copyright. As per section 51 of the Copyright Act, 1957, when any person without a license granted to him by the owner of the copyright, permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of copyright, this displaying amounts to infringement of copyright.
Here, the word “place” may be referred to include the website or any other place as well.
Q7: Whether importing of any tattoo design without the express approval of the author, into India from a country outside India and then using it in India amounts to infringement of Copyright?
Ans: Yes, importing of any tattoo design without the express approval of the author, into India from a country outside India (except one copy for private or domestic use) and then using it in India amounts to infringement of Copyright and is a punishable offense.
As per section 51 (b) of the Copyright Act, 1957, where any person imports into India any infringing copies of the work (except one copy for private or domestic use) it also amounts to infringement of copyright.
Q8: Is there any way to find out whether any tattoo design that is available in the public domain, is copyrighted or not before using it for commercial purposes?
Ans: As per the judgment of Bombay High Court in the case of Sanjay Soya Pvt. Ltd. Vs. Narayani Trading Company, it was stated that it is not mandatory to register a copyright. Once an original artwork comes in public domain, it is deemed to be copyrighted.
Hence, there is neither any logic nor any need to find out whether any tattoo design is copyrighted or not, because once a design comes in public domain, it is deemed to be copyrighted and it cannot be used without the express approval of the author.
Q9: Is there any other act or regulation under which approval/registration is to be done before starting the tattoo business in India?
Ans: Though the tattoo industry in India is huge and is continuously growing, there are no specific legislations governing it. However, if we consider the definition of “Cosmetics” given under Drug and Cosmetics Act, 1940, it can be concluded that the Tattoo is covered under the provisions of Drugs and Cosmetics Act, 1940.
As per Section 3(aaa) “Cosmetic” means: any article intended to be rubbed, poured, sprinkled or or sprayed on, or introduced into, or otherwise applied to, the human body or any part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance, and includes any article intended for use as a component of cosmetic.
This act regulates the import, manufacture, distribution and sale of drugs and cosmetics in India. For the purpose of manufacturing or importing a cosmetic product into India, a license under Drug and Cosmetics Act, 1940 is required from the regulatory authority for which an application should be filed in Form COS-1.
Q10: Are there any restrictions imposed on the import of cosmetics into India?
Ans: As per section 10 & 18 of the Drug and Cosmetics Act, 1940, Central Government may by notification in the Official Gazette in this behalf, impose certain restrictions that no person shall import, manufacture for sale or distribution, sale, stock, exhibit, or offer for sale:
- any cosmetic containing any ingredient that may render it unsafe or harmful for use under the directions indicated or recommended;
- any cosmetic the import of which is prohibited by rules;
- any or cosmetic which is not of standard quality, or adulterated;
- any misbranded or spurious cosmetics;
- any cosmetic for the import of which a license is prescribed;
Any violation of any of these restrictions is a punishable offence under the Drug and Cosmetics Act, 1940 and the stock of such cosmetics shall also be liable to be confiscated.
In order to identify whether the ingredients of any cosmetics are prohibited by the government or in order to identify the nature of the cosmetics, the manufacturer or importer may obtain a test or analysis report by making an application in such manner and by payment of such fees as may be prescribed by the Central Government from time to time.
In case you wish to start any business in India, please feel free to reach out to us to get the legal analysis of the business.
Happy Reading!
Team Businezexcellence
