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Protecting Your Ink: Copyright and Tattoos
May 1, 2018

By Max S. Morgan and Kevin P. Proud

Tattoo artist Catherine Alexander recently put ink to paper, rather than her typical canvas, to file a lawsuit against WWE, a videogame developer, and a videogame publisher alleging that the trio used the tattoos she designed for world-renowned WWE wrestler Randy Orton in a commercial manner and without her consent. Alexander’s complaint is yet another lawsuit testing to what extent tattoos are subject to copyright law.

Section 102 of the Copyright Act offers protection to “original works of authorship fixed in any tangible medium of expression.”[1]  The provision lists eight categories of works of authorship, including “pictorial, graphic, and sculptural works.”  While the design of a tattoo surely falls within this category, what is not as clear is whether copyright protection would also apply after the design is tattooed on a person’s skin.  There have been a limited number of lawsuits to assert copyright infringement of tattoos.  Those cases were either settled or dropped, precluding the issuance of an opinion clarifying the bounds of copyright law with respect to tattoos.  As a result, this question remains to be one of first impression.

While it is unclear if WWE has faced a lawsuit of this kind in the past, co-defendants Take-Two Interactive and 2K Games are currently facing a similar lawsuit .  In 2016, the videogame developer and publisher were sued by Solid Oak Sketches, a company that owns the exclusive licensing rights to LeBron James’ tattoo artist’s designs.[2] Like Alexander’s lawsuit, Solid Oak is alleging copyright infringement after the two companies featured James with his tattoos in the NBA 2K videogame series.  In their defense, Take-Two and 2K Games have countered that the use of the tattoos was either de minimis or fair use. Their motion to dismiss the case was denied last month.

Copyright infringement claims involving tattoos are not confined to videogames.  In 2011, the artist who designed Mike Tyson’s face tattoo filed a lawsuit against Warner Brothers after learning that The Hangover 2 was planning to reproduce the tattoo on another actor’s face.[4] While the case ultimately settled, Judge Catherine Perry stated in a hearing on the plaintiff’s motion for a preliminary injunction that had the case proceeded to trial, the artist had “a strong likelihood of prevailing on the merits for copyright infringement.”[5]

For tattoo artists interested in protecting their original designs, there are two simple steps that can be incorporated in their practice.  First, an artist should be sure to create and save a physical copy of their tattoo design(s).  Whether the design is done on paper or on the computer, it is important to preserve some record of the design.  The second step is filing a copyright application with the U.S. Copyright Office. A copyright holder who can successfully demonstrate that his or her copyright was infringed may be entitled to statutory damages up to $150,000.[6] In the event that a tattoo artist has multiple designs copyrighted, this award applies to each individual design that is infringed.

[1] 17 U.S.C. § 102

[2] Complaint, Solid Oak Sketches, LLC v. Visual Concepts, LLC et al, (No. 16CV-724) (S.D.N.Y. 2016) (https://www.courtlistener.com/recap/gov.uscourts.nysd.452890.1.0.pdf).

[3]Jonathan Stempel, Lawsuit over LeBron James, NBA Stars’ tattoos in video games can proceed, Reuters Sports News (Mar. 30, 2018) https://www.reuters.com/article/us-take-two-lawsuit-nba-tattoos/lawsuit-over-lebron-james-nba-stars-tattoos-in-video-games-can-proceed-idUSKBN1H61MZ.

[4] Noam Cohen, On Tyson’s Face, It’s Art. On Film, a Legal Issue, The New York Times (May 20, 2011),  https://www.nytimes.com/2011/05/21/business/media/21tattoo.html.

[5] Transcript of Hearing on Motion for Preliminary Injunction at 3, Whitmill v. Warner Bros. Entm’t Inc.,, No. 4:11-CV-752 (E.D. Mo. June 21, 2011).

[6] 17 U.S.C. § 504(c)(2)