United States: Trends In Copyright Litigation For Tattoos

An increasing trend in copyright infringement suits filed in the United States has tattoo artists bringing suit against entertainment entities, and in some cases against the tattoo bearer themselves, for the reproduction or recreation of tattoos they created.  Most commentators would likely conclude that tattoos are eligible for copyright protection under the Copyright Act.  However, it is important to note that a distinction can be made between the copyright in the design of the tattoo and the copyright in the tattoo as it is reproduced on the body of a person

In terms of the design of the tattoo, § 102 of the Copyright Act, 17 U.S.C. §§ 101 et seq., extends to protection to "original works of authorship fixed in any tangible medium of expression."  This section further details that "works of authorship" include "pictorial, graphic, or sculptural works," and tattoos would arguably fall under this category.  Additionally, tattoo designs would also arguably qualify as being "fixed" "in a tangible medium of expression when its embodiment . . . is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration," which is a requirement for copyright protection under § 101—the medium here would be human skin.  As the owner of a copyright for the design of a tattoo, the owner is entitled to certain rights including the right to reproduce the copyrighted work, the right to distribute copies of the copyrighted work, and the right to publicly display the work.

However, the copyrightability of the tattoo on the skin of a person is less certain—there is disagreement about whether the body constitutes a tangible medium of expression, which is a requirement of copyright law under § 101 of the Copyright Act.  This disagreement is the subject of recent copyright litigations that are challenging the reproduction or recreation of celebrity tattoos as copyright infringement on the rights of the tattoo artists.  An example of this disagreement among scholars can be seen in David Nimmer's declaration in the Whitmill v. Warner Brothers Entertainment, discussed below, where Mr. Nimmer expressed skepticism as to whether a tattoo can qualify for copyright protection: "I tacitly assumed that a tattoo could 'presumably qualify as a work of graphic art, regardless of the medium in which it is designed to be affixed' such as 'human flesh.'  . . .  About a decade ago, . . . I began to reconsider that position.  . . . I concluded that 'a body even as augmented, simply is not subject to copyright protection.'"

With that background in mind, in recent years, there have been several litigations where tattoo makers alleged copyright infringement for the use of celebrity tattoos in a movie and in video games.  The question of whether a celebrity's tattoo is eligible for copyright protection is again at the forefront in a pending lawsuit against the makers of the NBA 2K video games.  In February 2016, Solid Oak Sketches, the plaintiff, filed a complaint against Take-Two Interactive and other companies associated with video game NBA 2K16 for copyright infringement in the U.S. District Court for the Southern District of New York.  In NBA 2K16, the creators of the game digitally recreated NBA players, including the well-known tattoos on several famous NBA players, as part of the game maker's intention to depict those players as they appear in real life.  Solid Oak Sketches owns eight artistic works depicted on tattoos on several NBA players via licensing agreements with the various tattoo artists—these NBA players include LeBron James, Eric Bledsoe, and Kenyon Martin.  These players appear in the Defendants' video game NBA 2K16.

However, on August 9, 2017, Take-Two Interactive filed a motion for summary judgment, asserting that the appearance of the tattoos in the games is protected by the doctrines of fair use and de minimis use, which allows for a work to be legally used because the use of the work is trivial.  Take-Two Interactive argues that Solid Oak's position would essentially require the players as public figures to obtain permission "every time they appear in public, film, or photographs and that those create new works depicting the players as they actually appear (with their Tattoos) should be enjoined and pay damages."  As part of its argument that the use of the tattoos in NBA 2K16 is de minimis, Take-Two Interactive asserted that "[t]he Tattoos rarely appear in [the game] as they are only displayed when the players on whom they are inked are selected from the over 400 other NBA players that are available," and even when the tattoos do appear, "they are not prominent."  With respect to the fair use defense, Take-Two Interactive argued that its use of the tattoos is "completely different" and each of the factors courts consider support a finding of fair use.

This is not the first litigation to raise the issue of whether celebrity tattoos are eligible for copyright for protection.  For example, in 2005, a tattoo artist, Matthew Reed, sued both Nike and NBA player Rasheed Wallace over an advertisement that featured an Egyptian version of his family.  This issue arose again in a 2011 litigation in which tattoo artist Victor Whitmill sued Warner Brothers for copyright infringement for the duplication of Mike Tyson's tattoo in the movie The Hangover: Part II.  In that case, Whitmill sought both injunctive relief and monetary damages, which could have risked the release of the film if Whitmill was granted relief upon his claims.  A third suit involving these same issues was brought in 2012 by tattoo artist Scott Allen against Electronic Arts, Inc., a video game maker, and NFL player Ricky Williams for the use of Williams' tattoo in advertising for EA Sports' games, including NFL Street, Madden NFL 10, and Madden NFL 11.  All of these litigations resulted in settlements.

Although none of these litigations ruled on the issue as to whether the use of these celebrity tattoos was permitted and whether they were copyrighted, a comment by Judge Perry in the Whithall and Warner Brothers litigation indicated she believed tattoos are copyright eligible—"Of course tattoos can be copyrighted.  I don't think there is any reasonable dispute about that."  However, an opinion was never issued in this case because the parties settled later that day.  Additionally, as a consequence of this litigation, the NFL Players Association ("NFLPA") advised players to get copyright licenses or waivers from their tattoo artists as a way to avoid legal liability.

It is important to note that defendants in these litigations are not without defenses, but because the prior lawsuits regarding these same issues settled without trial, these defenses have not been tested.  These defenses include fair use, work made for hire, joint authorship, and implied nonexclusive license.  Here, Take-Two Interactive's reliance on the fair use defense could provide additional insight as to how a court may evaluate this defense in the context of celebrity tattoos for future defendants facing similar allegations.

Depending on the outcome of this litigation, the uncertainty surrounding copyright litigation and tattoos may continue to be the current state of the law on this topic.  If Take-Two Interactive is successful in its motion, the ruling could provide more concrete insight on the question of whether the use of celebrity tattoos in video games and films constitutes copyright infringement.  Even if the court rules that Take-Two Interactive's defenses are valid, defendants in these types of cases will still be able to assert affirmative defenses, like fair use, but future reliance on a fair use defense will continue to be fact-specific.  Further, the outcome of this litigation may also induce professional sports leagues and their affiliated players associations, like the NFLPA did in 2013, to advise players to get a release from their tattoo artist to avoid legal liability.  Depending on the outcome of this litigation, managers and agents should be aware of potential copyright issue in endorsement deals and merchandising for the professional athletes they represent who have tattoos.  However, in the event this litigation settles prior to the ruling on Take-Two Interactive's motion for summary judgment, the uncertainty surrounding copyright infringement and celebrity tattoos may still exist.

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