When Body Art Becomes Ta-Too Much Legal Trouble

Resolving the Copyright Uncertainties of Tattoo Art Applied to the Human Form

SARA GOLD

Under the law, is a tattoo owned by the tattoo artist, by the tattooed person, or both?

Federal courts are increasingly grappling with these questions in tattoo-related copyright cases. Tattoo designs are two-dimensional art, and federal copyright law protects original pictorial works against unauthorized copying, reproduction, distribution, or public display unless a valid defense such as fair use applies.1 Unlike most pictorial art, tattoos are inked onto a living person, who has a personal right to their own image and likeness. Tattoos present an interesting intersection of these rights when it comes to original art that is inked onto the human body.

Presently, the federal courts cannot agree on whether a tattooed celebrity impedes the artist’s rights by authorizing third-party depictions that include the tattoo(s) as part of the celebrity’s own likeness. Notably, the courts disagree as to whether a tattoo artist grants an implied license to the client by virtue of integrating the artwork in ink onto the person’s body. As a result, there have been inconsistent outcomes on very similar matters.

The recent plethora of disputes involving sports video games makes the need for a unifying doctrine even more apparent. There should be a federal doctrine that, while not entirely denying copy- right protection in tattoo art, rejects those copyright claims that are based on the accurate appearance of a person’s real-life tattoo as part of the person’s likeness.

To avoid conflict with patent law, the Copyright Act avoids protecting purely functional aspects of useful articles onto which artwork is emblazoned.2 A tattoo depicted on the celebrity, just like in real-life, can be seen as functional—serving as a personal identifier rather than as artistic expression that the Copyright Act strives to protect. A context-specific functionality approach can permit functional tattoo design uses while still prohibiting infringements of tattoo art for non-personal-identification purposes. Not only does this solution fit the goals of the Copyright Act, but it also promotes celebrities’ freedom to enter into third-party media contracts—as well as the public’s desire to consume celebrity culture.

Sports Video Game Controversies

A federal jury in Illinois recently found sports video game producer Take-Two Interactive, Inc. liable for copyright infringement because it depicted wrestler Randy Orton’s six tattoos as part of his avatar in the WWE 2K video game.3 The $3,750 verdict, which Take-Two is currently contesting, flatly contradicts an earlier New York federal decision that permitted Take-Two’s depictions of tattoos on NBA basketball players in a different game.4

The recent $3,750 jury verdict came from the Southern District of Illinois following the court’s denial of Take-Two’s summary judgment motion two years prior.5 Ruling on the motion, the court declined to find as a matter of law that Orton had an implied license to authorize the use of his tattoos in media as part of his overall likeness.6 The outcome of this issue, the court held, was based on the understanding between Orton and his tattoo artist at the time the tattoo was created.7 Because the parties did not outright discuss these issues at that time, the existence of an implied license was an unresolved factual question suitable for a jury, the court held.8

Yet six months prior to that summary judgment decision, the Southern District of New York had ruled oppositely in a similar copyright dispute over Take-Two’s NBA 2K video game. The court granted summary judgment to Take-Two, holding that absent a contrary agreement, the players had an implied license to authorize the commercialization of their tattoos as part of their image/likeness.9 No different from the Orton case, the NBA players “neither requested nor agreed to limit the display or depiction of the images tattooed onto their bodies.”10 The plaintiff tattoo agency Solid Oak Sketches chose not to address these issues, even though it knew from the outset that the NBA players were “likely to appear in public, on television, in commercials, or in other forms of media,” the court said.11 As a result, NBA 2K was non-infringing as a matter of law.12

As commentators have noted, the inconsistent rulings across jurisdictions make it difficult for celebrities, tattoo artists, and entertainment companies to understand their legal obligations are when for depictions of tattooed celebrities.13 Due to this legal uncertainty, experts are advising attorneys that the safest course for media/ entertainment producers is to obtain licenses for tattoos wherever possible.14 However, a national consensus on this issue is desirable. If this inconsistency is to be resolved, it should be resolved in favor of permitting individuals to commercialize their image and likeness, including a faithful depiction of the tattoos that exist on the person’s body.

Context-Specific Copyright Enforcement Eligibility

Implied license is an imperfect framework to apply to the intellectual property implications of a tattoo artist inking a tattoo onto a client. Contract law is based on a “meeting of the minds;” because tattoo artists and clients rarely negotiate the copyright implications of the tattoos, there is no real factual basis to infer the parties’ actual intent, implied or otherwise. Some courts have deferred this issue to the jury on the basis of it being a factual question;15 however, in these cases, juries are no better equipped than the court to decide whether or not the parties specifically intended for the client to be able to commercialize his/her likeness without further compensation to the artist.

The better approach, under a functionality approach, is to reject copyright claims against tattoo depictions within true-to-life portrayals of the tattooed person. Other, non-functional, uses of the tattoo art that lack the same purpose of realism would still be potentially actionable under copyright law.

The Copyright Act already applies context-specific analysis to identify the copyright-enforceable elements of useful articles and architecture. Both functionality and public access considerations support the exemption of tattoos from copyright liability when used as part of celebrity depictions.

Tattoos are Functional and Unenforceable When Depicted as a Celebrity’s Personal Identifier

Copyright scholar David Nimmer first addressed functionality concerns with copyright protection of tattoos more than a decade ago in the context of a Mike Tyson tattoo dispute.16 He, however, posited that tattoos are wholly ineligible for copyright protection, a position that other scholars at the time viewed as extreme.17

Years later in Star Athletica v. Varsity Brands, the U.S. Supreme Court took a more nuanced, context-dependent approach in relation to a copyright dispute over cheerleader uniforms.18 In oral argument, the Court acknowledged the unique difficulty of evaluating art copyrightability when it comes to two-dimensional art that is “meant to fit onto a human body in a particular way.”19 The Court discussed the possibility that, in a useful article, the functionality of a design may depend on where the design appears. The attorneys and justices used camouflage designs as an example. A camouflage design, when used on military uniforms, may be functional and necessary as a means of concealment; the same design, when used on a lunchbox, is purely decorative.20

Not unlike a camouflage design on a military uniform, celebrity depictions that include the celebrity’s tattoos do so to accurately depict the real-life person, rather than to display the art for art’s sake. For much the same reason, the Ninth Circuit permitted registered trademarks to appear as minute parts of the real-world landscapes shown in Take-Two’s Grand Theft Auto video games.21 The fleeting appearance of a tattoo on an athlete in a sports game is qualitatively no different than the fleeting appearance of a trademarked establishment in a Grand Theft Auto game. Like in trademark law, verisimilitude in the copyright context can be considered a non-infringing functional use.

Notwithstanding, under this framework, tattoo depictions that depart from realism could still be copyright actionable, including uses that are either (a) not associated with the actual tattooed person, or (b) associated with the actual tattooed person but do not faithfully depict the tattoo as it appears on the real-life person. In either of these two scenarios, the functional identification quality is absent, making the use solely artistic and potentially actionable as infringement.

An example of a non-functional use is the tattoo design that Cardi B controversially borrowed to create cover art for her album, prompting a high-profile federal lawsuit in the Central District of California that received a jury verdict in late 2022. In Brophy v. Almanzar, Cardi B admitted that her design team found an image of plaintiff Brophy’s tattoo, copied it, made some alterations, and transposed it onto the bare back of a male model who was not Brophy.22 Rather than the tattoo artist suing for copyright infringement, Brophy himself sued for violation of his right of publicity. He argued that the elaborate back tattoo uniquely identified him and created the false impression that he was the man depicted on the album cover engaging in a sexual act with Cardi B.23 Ultimately, the jury found in Cardi B’s favor on the basis of fair use.24 Had the tattoo artist been inclined to sue, this would have exemplified a non-functional use of the tattoo design, for Cardi B’s team pilfered Brophy’s tattoo not to depict Brophy, but simply as a shortcut for finding an appropriately tattooed model or commissioning new artwork.

Real-Life Depictions Promote Public Access to Celebrity Culture

In addition, there are also public interest policy reasons supporting liability-free depictions of tattoos depicted as part of the person. The Copyright Act already disclaims liability for portrayals of public architectural works that include copyrightable artistic elements. Just like public buildings, celebrities are equally within the public zeitgeist and should be similarly copyright exempted to promote right of access to popular culture.

Architecture itself is copyrightable and enforceable against infringement but with limitation.25 Per the text of Copyright Act § 120(a), a constructed work of architecture does not include the right to prevent others from visually portraying the architecture so long as the building in which the work appears is located in or ordinarily visible from a public place.26

Applying this rule, the Ninth Circuit Court of Appeals held in Leicester v. Warner Brothers that the film Batman Forever was permitted to show a series of sculptures because the sculptures were part of a work of architecture in downtown Los Angeles.27 The court made clear that a plaintiff who contributes copyrightable elements to a work of architecture would only have a potential copyright claim against a use that is “divorced from the context of the building in which it was embodied, i.e., on a poster, t-shirt, or other print media.”28 Because the film depicted the sculptures only in their real-life context, there was no viable copyright claim.29 Courts have since applied § 120(a) to murals painted on buildings, which is quite analogous to tattoos inked on celebrities.30

The purpose of § 120, which is to enable artists to portray publicly visible edifices, applies just as strongly—if not even more so—to public figures in our celebrity-obsessed culture.31 Scholars are already commenting that requiring licenses from tattoo artists in order to depict tattooed celebrities adds expense and legal risk for companies like Take-Two. If the process becomes too legally risky, this could disincentivize portrayals of certain celebrities and restrict the public’s consumption of celebrity content. Moreover, celebrities themselves might be disincentivized from getting tattoos if they fear that it would complicate their future legal obligations—which could ultimately hurt the tattoo industry greater than a lost licensing fee. In addition to functionality concerns, the public’s interest in consuming celebrity content supports exempting these depictions from copyright liability to the tattoo artists.

Conclusion

For tattoos that are permanently inked onto a human body, the challenge is determining where the artist’s copyright ends and the celebrity’s autonomy over his/her likeness begins. Perhaps this distinction need not be complicated. To prevent tattoo artists from continuing to pursue copyright damages based on realistic portrayals of celebrities, these types of uses should be exempted from liability to advance functionality and public access interests.

The beauty of the functionality distinction is the ability to permit celebrities to commercialize their real-life likeness while still protecting the tattoo artist’s right to prosecute other thefts of a tattoo design for solely artistic purposes like in Brophy. Another advantage is that functionality creates more legal predictability than a contract law approach. Implied license requires discerning the legal intent of the artist and client when that intent is usually absent; as a result, the ultimate outcome ends up devolving into a subjective judgment about whether or not the tattoo artist deserves to be compensated—accounting for inconsistent judgments in different districts. Functionality ensures more predictability by focusing on the practical use of the tattoo rather than speculations about intent.

This framework need not work to the disadvantage of tattoo artists. They can choose to either charge more for their services or contractually require further compensation for the client’s future appearances. Moreover, a default principle favoring the client’s freedom of contract would avoid placing third parties, like Take-Two, in the middle of these disputes. Rather than burdening entertainment companies with extensive clearance checks, the responsibility should be on the celebrity to honor any agreements that exist regarding future compensation to tattoo artists.

Ultimately, the artist’s copyright can be properly limited to the tattoo design itself—not the presence of the tattoo on the client. Just like a uniform designer does not own the cheerleader and a muralist does not own the building, so too should a tattoo artist not by default be permitted to monopolize the tattooed person. 

Sara Gold is an intellectual property litigator in Southern California. This article is dedicated to her father, Dr. Corey Gold, who modelled excellence and always supported her in her personal and intellectual pursuits. He will be dearly missed.

Endnotes

1Copyright Act of 1976, 17 U.S.C. §§ 101-1332 (2012).

2See 17 U.S.C. § 101 (The artist’s copyright in a useful article, such as fashion, extends only to those independently copyrightable pictorial, graphical, or sculptural elements that are separable from the useful article itself.)

3Kyle Jahner, WWE Tattoo Verdict Fails to Settle Complex Copyright Question, BL (Oct. 24, 2022), https://news.bloomberglaw.com/ us-law-week/wwe-tattoo-verdict-fails-to-settle-complex-copyrightquestion.

4Id. Following the verdict, Take-Two moved for judgment as a matter of law on the basis that fair use applied and that, moreover, there was no factual or evidentiary basis for the jury’s finding that Take-Two earned $3,750 profit from the game’s inclusion of Randy Orton with his tattoo. See Defendants’ Motion for Judgment as a Matter of Law, Alexander v. Take-Two Interactive Software, Inc., 489 F. Supp. 3d 812 (S.D. Ill. 2020).

5Aaron Moss, Tattoo Feud: Artist’s Copyright Case (Inexplicably) Sent to Trial, Copyright Lately (Oct. 7, 2020), https://copyrightlately. com/tattoo-artist-copyright-case-wwe-2k/.

6Alexander, 489 F. Supp. 3d at 812, 819.

7Id.

8Id

9Solid Oak Sketches, LLC v. 2K Games, Inc., 449 F. Supp. 3d 333, 346 (S.D.N.Y. 2020).

10Id

11Id.

12As of this publication, yet another NBA 2K tattoo dispute is set to be tried in 2023 in the Northern District of Ohio, in which the court denied summary judgment to Take-Two in 2022 akin to the Randy Orton case. If the case is ultimately tried, it will be interesting to see whether this jury is as sympathetic to the tattoo artist as the jury in the Orton tattoo trial. Hayden v. 2K Games, Inc., No. 1:17CV2635, 2022 U.S. Dist. LEXIS 170098, at *23 (N.D. Ohio Sep. 20, 2022).

13Jahner, supra note 3.

14Id.; Lawful Masses with Leonard French, Tattooist Wins Copyright Lawsuit Against 2K Games, YouTube (Oct. 19, 2022), https://www. youtube.com/watch?v=UqhAQ9eXoj8.

15E.g., Alexander, 489 F. Supp. 3d 812; Hayden, 2022 U.S. Dist.

LEXIS 170098.

16Kathleen Wills, That Tattoo on Her Shoulder: The Intersection of Copyright Law & Tattoos, 7 Tex. A&M J. Prop. L. 622, 625-626 (2021).

17Declaration of David Nimmer supporting Warner Bros.’ Memorandum in Opposition to Plaintiff’s Motion for Preliminary Injunction, Whitmill v. Warner Bros., No. 4:11-CV-752 (Dkt. No. 306) (E.D. Mo. 2011); Yolanda King, The Challenges “Facing” Copyright Protection for Tattoos, 92 Or. L. Rev. 129, 156 (2013).

18Star Athletica, L.L.C. v. Varsity Brands, Inc., 580 U.S. 405, 412, 137 S. Ct. 1002, 1009 (2017) (citing 17 U.S.C. § 101).

19Transcript of Oral Argument at 39, Star Athletica, L.L.C. v. Varsity Brands, Inc., 580 U.S. 405 (2017) (No. 15-866).

20Id. at 30-31; see Mala Chatterjee, Conceptual Separability as Conceivability: A Philosophical Analysis of the Useful Articles Doctrine, 93 N.Y.U. L. Rev. 558, 568 (2018).

21E.S.S. Entm’t 2000, Inc. v. Rock Star Videos, Inc., 547 F.3d 1095, 1100-01 (9th Cir. 2008); see Sara Gold, Honey Badger Don’t Care, but the Legal Community Does, 19 WAKE FOREST J. OF BUS. & INTELL. PROP. Law 381, 386-87 (2019).

Profiles in D&I Leadership continued from page 27

National Association of Immigration Judges. The views she expresses here do not necessarily represent the official position of the United States Department of Justice, the Attorney General, or the Executive Office for Immigration Review. The views represent her personal opinions, which were formed after extensive consultation with the membership of NAIJ.

22Brophy v. Almanzar, 2020 U.S. Dist. LEXIS 247903, at *6-*7 (C.D. Cal. Dec. 4, 2020).

23Id. at *3.

24Kyle Jahner, Tat on Cardi B Album Didn’t Flout Man’s Image Rights, Jury Says, BL (Oct. 24, 2022), https://news.bloomberglaw.com/iplaw/tat-on-cardi-b-album-didnt-flout-mans-image-rights-jury-says.

2517 U.S.C. §§ 113, 120.

2617 U.S.C. § 120(a).

27Leicester v. Warner Brothers, 232 F.3d 1212, 1219 (9th Cir. 2000).

28Mercedes Benz, USA, LLC v. Lewis, No. 19-10948, 2019 U.S. Dist. LEXIS 154818, at *14 (E.D. Mich. Sep. 11, 2019), citing Leicester v. Warner Brothers, 232 F.3d 1212, 1219 (9th Cir. 2000).

29Id.

30See Elizabeth Bourne, Architectural Works Copyright Protection Act, the Section 120(a) Limitation, and its Application to Murals, Colligan Law LLP (Jan. 31, 2023), https://insights.colliganlaw. com/post/102i6ph/architectural-works-copyright-protection-actthe-section-120a-limitation-and.

31Mercedes Benz, 2019 U.S. Dist. LEXIS 154818, at *14.

Nayeon Kim graduated from the City University of New York School of Law and currently works at the Bronx Defenders Civil Action Practice. Prior to law school, Nayeon worked with asylum seekers in El Paso, Texas and San Francisco. In California, Nayeon taught incarcerated students at San Quentin State Prison. During law school, Nayeon interned for the Advancement Project, Homeboy Industries, Public Defender Service of D.C., Southern Center for Human Rights, Center for Appellate Litigation, and the Southern District of New York.

The Glass Cage continued from page 31

28Id.

29The Act, supra note. 4, at sec. 105.

30Id. §107.

31Id.

32That number was calculated by multiplying the 2023 annual update to the Department of Health and Human Services’ Poverty Guidelines. See 45 C.F.R. pt. 1611, App. A (2023).

33Id. § 106.

34The Act, supra note 4, at sec. 107.

35Id.

36Id.

37See MPEP 509.03(a) (9th ed. Rev. 10 Oct. 2019), Duty to Investigate Entitlement to Claim Small Entity Status.

38Kurt Vonnegut, Slaughterhouse-Five, or, The Children’s Crusade: A Duty-Dance with Death, Delacorte (1969) at pg. 183.

39CRISPR stands for Clustered Regularly Interspaced Short Palindromic Repeats and it is a tool used in gene editing. For further information, see Questions and Answers about CRISPR, Broad Inst. (last accessed Feb. 14, 2023), https://www.broadinstitute.org/whatbroad/areas-focus/project-spotlight/questions-and-answers-aboutcrispr