ATISH CHAKRABORTY
Reviewed by Subhash Bhutoria
Body art is integral to human civilization and in its various forms, has been a powerful medium to communicate one’s identity, perception, preferences and even status in the society. Throughout the Indian landscape, body art lives, but mostly in exile. It is believed that even Lord Krishna veiled himself as a ‘Godanhari’, a woman who is skilled in godna art, to make tattoo on Radha. Indian history and mythology are full of such anecdotes, which shows that body art was not merely an activity but was integral to Indian culture and civilization. Art law India aims to bring these incredible yet, unrecognized art forms, into legal perspective.
Body art has been prevalent in India since time immemorial. The traditional body tattooing has social and religious importance. For some, it is a permanent jewelry, which remains even after life and for some others, it is a means to look ugly and unwanted[1]. Godna, which means piercing, generally with needle, is a prevalent body art in Central India. Biaga tribe, which practices Godna, believes that Godna is the only jewellery, and of poor people, which will stay with the person even after life. Godna is also believed to have therapeutic effects. In Southern India, permanent tattoos are called pachakutharathu, which is used as cultural symbols. Arunachal’s Apatani tribe used tattoos to make their womenfolk, unattractive. The sinuous labyrinth, Kollam, is believed to scare death. Undoubtedly, the traditional body arts of India have great social significance and are an accepted norm in Indian culture.
Although, with time, the Indian traditional body arts have been confined to few in the tribes, body art, as a creative impression, has entered the mainstream even in India, as a multi-million-dollar business, which employs thousands of artists across India. However, the industry is still an unrecognized and unorganized sector, particularly from the legal aspects. Jurisdictions such as City of Cambridge, England or various States in the USA, have specific laws and regulations to be followed by Tattoo artists, customers and even establishments, which allows Body art activities.[2] These laws provide for minimum training standards, practice license, health and safety standards, prohibition of unsafe equipment and chemicals and even penalty and criminal prosecution in case of any violation of these rules and regulations. In Indian context, there is no sui generis law, which governs body art. However, a gamut of existing laws regulates the body art business in India.
Art, which is etched under the skin by a Tattoo artist, is subject to laws of creativity as well as of public decency and morality. On most occasions, tattoos commemorate special events or signify important personal beliefs and thus are more often than not, original work. However, Tattoo artists also refer to existing artworks and even replicate them on the recipient. Under the copyright laws, the artist, who has originally created the tattoo design, is first owner of the tattoo, and hence copying of an original design may violate the Artist’s exclusive rights.[3] Undoubtedly, adoption of any artwork including an earlier tattoo design is largely a commercial use, and hence such adaptation or unauthorized use may not be exempted as a fair use/ fair deal. Tattoos adorned by celebrities, become part of their likeness and its commercial use to represent the celebrity himself/ herself, albeit bonafide, may infringe upon the exclusive rights of the Artist.[4] This conflict of rights can be resolved to a great extent, through assignment of rights from the Artists or by obtaining no objections. While inking may be opaque, display of a tattoo etched on private parts may be considered an obscene act under the Indian Penal Code, 1860. In 2015, the Indian Army had released a Tattoo policy, allowing customary body art and only those tattoos, which are not offensive in any manner, and does not prejudice good order and military discipline.[5]
Body, being the canvas for this artform, is exposed to chemicals and invasive instruments, which can cause infection, allergies and even serious bodily harm. On one hand, Indian tribes believe that Godna has therapeutic effects, on the other hand, diseases such as hepatitis and HIV Aids can be transmitted to the recipient during tattoo session. As of now, there are no specific laws or regulations to ensure health and safety of the recipient and artists. Any such incidence would largely be covered under Consumer Protection laws. Tattoo inks are manufactured by mixing pigments with auxiliary compounds[6], including nano particles, which are believed to have carcinogenic properties. This makes tattoo art and the ink industry subject to use and disposal of hazardous material and wastes.
It is obvious that Ink is not merely an artform, but a multi-disciplinary industry, encouraging creativity and providing livelihood to thousands of creative professionals. For a sustainable growth of this industry, it is important to lay down clear laws and regulations.
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[1] “Behind the body modification women of Apatani Tribe”, Shatabdi Chakrabarti, http://www.barcroft.tv/apatani-tribe-women-tradition-face-tattoo-nose-plug-india [2] https://www.cambridgepublichealth.org/services/regulatory-activities/body-art/body-art-regulations.php, https://www.sandiegocounty.gov/content/dam/sdc/deh/fhd/bodyart/SBAA_ba.pdf [3] Whitmill v. Warner Bros Entertainment Inc., Civil Action No. 4:11-cv-752; US District Court (Missouri Eastern Division) [4] Solid Oak Sketches v. 2K Games Inc. and Take-Two Interactive Software Inc., US District Court (New York) [5] https://joinindianarmy.nic.in/writereaddata/Portal/Images/pdf/tattopolicy2015.pdf [6] Safety of tattoos and permanent make‑up: a regulatory view - Michael Giulbudagian, Ines Schreiver, Ajay Vikram Singh, Peter Laux and Andreas Luch, Archives of Toxicology (2020) 94:357–369