Tattoo artists have increasingly sought legal protection for their work under the copyright law. This trend stems from the recognition that tattoos are original creations that meet the criteria for copyright protection: they are fixed in a tangible medium and display a modicum of creativity. According to most copyright laws, including the U.S. Copyright Act, an artistic work is defined as a painting, drawing, sculpture, or similar work of artistic craftsmanship. Tattoos can fall under this definition because they are original visual designs created by an artist. Since the past few years, a trend is seen when tattoo artists are actually claiming their copyright; over the use of their tattoos in the various advertisement; and video games featuring the celebrity on whom they applied their art. However, no court has ever confirmed whether tattoos are copyrightable; and a reason for the same is that most of the cases ended up with an out of court settlement.
Understanding Copyright In Tattoos
Under copyright law, tattoos can be considered "artistic works" if they meet the basic requirements for copyright protection: originality, fixation in a tangible medium, and a minimal degree of creativity. For a tattoo to be copyrightable, it must be an original creation of the tattoo artist. This means the design must be independently created and possess some degree of creativity. Most custom tattoo designs meet this criterion. Copyright law requires that the work be fixed in a tangible medium. Tattoos are fixed on the human skin, which satisfies this requirement. While the medium (human skin) is unconventional compared to traditional canvases, it still constitutes a fixed form. The tattoo must exhibit some level of creativity. This is a low threshold, and most tattoos easily surpass it as they are artistic and expressive in nature. Tattoos are indeed copyrightable, and their protection under copyright law ensures that tattoo artists can safeguard their creative works. This legal recognition upholds the rights of artists and addresses the complexities that arise when tattoos are featured in commercial contexts.
Case Analysis
The case "Hayden v. 2K Games" deals with the copyright infringement dispute involving tattoos featured in the NBA 2K video game series.
Background
Plaintiff James Hayden is a tattoo artist who has tattooed the likes of NBA star LeBron James. Defendant 2K Games Inc., and Take-Two Interactive Software Inc. are the developers of the video game series NBA 2K, an annually released game depicting players from the NBA in interactive simulations. The game displays and allows players to control realistic avatars of over 400 NBA players. Hayden brought suit, asserting copyright claims based on defendants' depiction in NBA 2K of his tattoos on NBA players LeBron James, Danny Green and Tristan Thompson. Plaintiff does business as Focused Tattoos. Plaintiff is the artist who inked tattoos on various individuals depicted with those tattoos in the NBA 2K series. Plaintiff asserts that he obtained copyright registrations for six tattoos inked on Danny Green, LeBron James and Tristan Thompson (the "Registered Tattoos"). The parties filed the cross motions for the summary judgement. Plaintiff sought summary judgement on the issues of copyright ownership and copying. Defendants argued that plaintiff's tattoos are not sufficiently original to qualify for copyright protection and sought dismissal for plaintiff's claims based on their affirmative defenses of fair use, de minimis use and implied license.
Judgement
The court addressed plaintiff's motion first. The court
decided in favor of the plaintiff on ownership, reasoning that the
tattoos on each player's body were published within the meaning
of the Copyright Act as soon as the procedure of inking them was
"complete." The plaintiff had the burden of proving that
he had registered three of the tattoos with the Copyright office
within five years of their publication in accordance with Section
410 of the Copyright Act, and the court found that the tattoos were
"sufficiently permanent and not transitory." Although
LeBron James' tattoos were registered outside of the five-year
period, the court nevertheless ruled that sufficient proof of
ownership had been submitted as to those works as well. Thus, the
court determined that all six of the plaintiff's copyrights
were presumed to be legitimate, placing the onus on the defendants
to disprove the assumption with proof of invalidity.
The court also ruled in plaintiff's favor on the issue of
whether the tattoos, many of which were taken from famous works of
art or other previously published works on objects, were original
and thus protectable under the Copyright Act. Asserting that tattoo
creation involves "countless artistic decisions, including as
to the precise shape, style, expression, shading, line thickness,
density, colour, and orientation on the shoulder, to name just a
few, each carried out through countless artistic and creative
acts," the plaintiff submitted a declaration outlining his
steps from a client's idea to the finished product. The court
concluded that plaintiff's tattoos met the "extremely
low" bar of creativity required for a work to be original and,
thus, protectable. As a result, the court determined that the
character of the copyrighted work was creative rather than factual,
which favoured the plaintiff.
Conclusion
The "Hayden v. 2K Games" case underscores the importance of recognizing and respecting the intellectual property rights of tattoo artists. It highlights the need for proper licensing arrangements when using such designs in commercial products, such as video games. This case contributes to the growing body of law affirming that tattoos are protectable under copyright law and that their unauthorized reproduction can constitute infringement. Tattoos are indeed copyrightable, and artists can register their designs to formally protect their work. This process, often referred to as holding the copyright "in title form," provides clear legal recognition and protection for tattoo designs, ensuring that artists can enforce their rights against unauthorized use.
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