Tattoos, Copyright Law, and the Doctrine of Fair Use

Milgrom Team

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The murmuring conversation surrounding tattoos as copyrightable art is growing increasingly loud. Tattoos, once stereotyped as a heart surrounding “mom” on a nostalgic sailor’s shoulder, are now coveted artworks which can shape an individual’s identity and how one is seen by the world. Would Mike Tyson’s persona be the same without the face tattoo surrounding his left eye? And, speaking of face tattoos, would we recognize Post Malone without the sixty-plus tattoos on his face?

The subject of “famous” tattoos—those that adorn celebrities—and their re-creation in instances where the celebrities are depicted, has become controversial. The tattoos are inextricably linked to how we perceive celebrities themselves. As such, the many re-creations of celebrities in cartoons, drawings, SNL skits, video games, and even Coachella holograms feature the famous person with tattoos identical to those the person has in real life—sometimes to the chagrin of tattoo artists.

Some tattoo artists are taking legal action by claiming copyright infringement and seeking damages for the un-permitted re-creation of their art on imitations of celebrities. This brings to the surface several legal questions: (1) Is a tattoo on a famous person entitled to copyright protection enforceable by the tattoo artist? and (2) Does depicting a celebrity with tattoos fall under the doctrine of Fair Use?

1. Copyright Protection

Under Section 102 of the Copyright Act, copyright protection begins at the moment of creation for (1) original works of authorship (2) fixed in any tangible medium of expression from which they can be (3) perceived, reproduced, or otherwise communicated.

Under this statute, tattoos are copyrightable works. Tattoos certainly fall under original works of authorship, specifically pictorial works. And, as my grandmother will tell you, tattoos are permanent marks on a body and therefore “fixed” in a tangible medium. Depending on the subject’s decision of where to place the tattoo, a tattoo is also perceivable to the public. Thus, tattoos are entitled to copyright protection and all the rights connected thereto. Under copyright law, the tattoo artist is able to protect his/her/their art (even if it is on someone else’s body) and to prevent others from using or copying it without the artist’s permission.

2. The Doctrine of Fair Use

What if the tattoo is publicly decorating Scarlett Johansson’s shoulders—or any other famous person’s shoulders? Can tattoo artists enforce their copyrights for the re-creation of a celebrity with their tattoos?

Tattoo artists can protect their copyrights, with one caveat (and a very amorphous caveat at that): the doctrine of Fair Use under Copyright Law. Under Fair Use, it is permissible to use another’s copyrightable work without the original author’s permission but only under certain circumstances, such as criticism, comment, news reporting, teaching, parody, scholarship, and research.

Fair Use is a notoriously gray area of law, and courts have landed on four factors for evaluating a question of Fair Use:

  1. The purpose and character of the use: Courts consider whether the use is for commercial or nonprofit purposes and whether the use is “transformative,” meaning that it adds something new, with a further purpose or different character than the original work’s purpose.
  2. The nature of the copyrighted work
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  4. The effect of the use upon the potential market for or value of the copyrighted work

When applied, these four factors lead to highly inconsistent results across the country’s circuits, frustrating tattoo artists and unlicensed users all over the world.

So, is the depiction of a celebrity with precise tattoos protected by the Doctrine of Fair Use? As is the answer with most Fair Use questions: it’s unclear. Two recent district court cases had opposite conclusions.

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

In the Solid Oak Sketches, LLC v. 2K Games, Inc. 449 F.Supp.3d 333 (S.D.N.Y. 2020), the federal district court in New York considered whether the defendant 2K Games, a video game developer owned by Take-Two Interactive Software, was guilty of copyright infringement for its highly realistic rendering of the tattoos of NBA stars LeBron James, Eric Bledsoe, and Kenyon Martin in its NBA 2K basketball game featuring various NBA athletes. The athletes had each granted permission to the NBA, who then granted the defendant permission to use the athletes’ likenesses in the game.

The plaintiff in the case, Solid Oak Sketches, an entity consisting of tattoo artists, held exclusive licenses to five of the tattoos featured on the athletes. Each tattoo was determined to be highly recognizable and essential to any depiction of the athletes themselves. Solid Oak Sketches alleged that 2K Games infringed on its copyrights (which were federally registered after the game was developed) by depicting these players’ tattoos without a license from Solid Oak Sketches. 2K Games claimed that its used was de minimus and, further, was protected under Fair Use. The Court agreed with 2K Games.

When applying the four factors of Fair Use, the Court found that 2K Games’s use of the tattoos was negligible and only constituted 0.000286%—0.000431% of the entire game’s data; that the use was transformative because they were necessary to render a realistic image of the players’ likenesses; and that the tattoos did not play a significant role in marketing NBA 2K, nor did it hurt Solid Oak Sketches’ market. The court further held that the tattoo artists had granted the athletes an implied, nonexclusive license to use the tattoos as part of their likenesses and personas since the tattoo artists knowingly tattooed public figures, and the players had, in turn, licensed the use of their likenesses for use in the NBA 2K game. Thus, the Solid Oak Sketches court held in favor of 2K Games: the depiction of the players’ tattoos in the NBA 2K game constituted Fair Use.

Catherine Alexander v. Take-Two Interactive Software, Inc, 489 F.Supp.3d 812 (S.D. Ill. 2020)

Solid Oak Sketches’ holding that (a) tattoo artists who ink celebrities grant those celebrities implied, nonexclusive licenses to their copyrightable tattoos and (b) the unpermitted depiction of a celebrity’s tattoos in a video game is protectable under Fair Use contrasts the holding in a recent district court case with nearly identical facts, Catherine Alexander v. Take-Two Interactive Software, Inc. 489 F.Supp.3d 812 (S.D. Ill. 2020). In Alexander, plaintiff  tattoo artist Alexander brought suit against Take Two, the maker of WWE 2K (yes, the same 2K), alleging that Take Two infringed on Alexander’s six copyrighted tattoos which she had rendered on wrestler Randy Orton’s body when WWE2K recreated those tattoos in its realistic depiction of Randy Orton in its WWE 2K video game series. Take Two adopted the same argument as in Solid Oak Sketches, claiming that its use was de minimus and permissible under the doctrine of Fair Use.  In contrast to Solid Oak Sketches, the Alexander court ruled that Take Two was guilty of copyright infringement and that it unlawfully infringed on tattoo artist’s Catherine Alexander’s copyrights in its realistic depiction of wrestler Randy Orton’s six tattoos in its WWE-2K video game series. Take Two admitted to copying the tattoos to create a realistic avatar.

The court in Alexander did not determine whether Alexander granted Orton an implied license when she rendered his tattoos and concluded that the use was not de minimis since Alexander’s tattoos were copied onto Orton’s avatar in their entirety. The court held that, although Take Two had a license from Orton to use his likeness in the game and although copying Orton’s tattoos were necessary to render a realistic game experience, Take Two’s use of the artists’ tattoos was not protected under the doctrine of Fair Use. The court found that the use was not transformative because it served the same purpose as Alexander’s: to decorate Orton’s body, and that Take Two did not use any creativity when it fully copied the copyrighted tattoos in Orton’s avatar. These factors weighed against a finding of Fair Use. Thus, the Alexander court ruled in favor of the tattoo artist and the protection of her copyrights.

Both of these decisions may be appealed to the 2nd and 7th circuits, respectively. However, we may still not have a clear answer for Fair Use as it relates to tattoos and to artists’ ability to enforce their copyrights. In other words, while tattoos are permanent, the extent of the copyrights of the artists who design them may still be in flux.

For additional information, please contact us.

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