Who Owns Your Tattoos?
You may be surprised to learn that copyright laws cover most tattoos, which means that the artist who created it has some say in how it is used. This has been true for many years, but recently courts have seen an uptick in copyright claims concerning tattoos.
What Does Copyright Law Cover?
Copyright law protects original works of authorship including “pictorial, graphic, and sculptural works”—which includes tattoos! That means that when you get a tattoo, you do not own its copyright. It remains with its creator (the tattoo artist). They have exclusive rights over the work which includes reproducing it or creating derivative works from it (like using a photo of someone in a commercial). Let's take a look at some cases involving tattoos and copyright law.
WWE's Randy Orton: Catherine Alexander v. Take-Two Interactive Software
In 2018, the world of wrestling was rocked by a legal battle involving tattoo artist Catherine Alexander and several major companies. At the center of the controversy was the use of Alexander's tattoos on the character model of WWE Superstar Randy Orton in WWE video games produced by Take-Two Interactive Software, 2K Games, Visual Concepts Entertainment, Yuke's, and more.
Alexander, who had created and inked Orton's tattoos, claimed that her original artwork had been used without her permission in the video games. The tattoos in question were highly recognizable and played a key role in establishing Orton's character and
appearance, so their inclusion in the games was a clear violation of Alexander's rights as the creator of the tattoos. In the end, Alexander received a monetary payment of $4,600 and an agreement that future figure will not use the tattoos.
LeBron James' Tattoos: Solid Oak Sketches v. Take-Two Interactive Software
In 2016, tattoo artist company Solid Oak Sketches sued video game publisher Take-Two Interactive for using their copyrighted tattoos on the bodies of NBA stars LeBron James, Kenyon Martin, and Eric Bledsoe in the "NBA 2K" franchise without permission. Despite LeBron James declaring that he thought he had the right to license his likeness, the lawsuit continued until a US district court ruled in favor of Take-Two, stating that their use of the tattoos in the game were "de minimus" and thus, not covered under copyright law.
U.S. District Court Judge Laura Taylor Swain stated, “Defendants are entitled as a matter of law to summary judgment dismissing Plaintiff’s copyright infringement claim because no reasonable trier of fact could find the Tattoos as they appear in NBA 2K to be substantially similar to the Tattoo designs licensed to Solid Oak,” She continued, “The Tattoos only appear on the players upon whom they are inked, which is just three out of over 400 available players. The undisputed factual record shows that average game play is unlikely to include the players with the Tattoos and that, even when such players are included, the display of the Tattoos is small and indistinct, appearing as rapidly moving visual features of rapidly moving figures in groups of player figures. Furthermore, the Tattoos are not featured on any of the game’s marketing materials.”
Further the Judge stated, “When the Tattoos do appear during gameplay (because one of the Players has been selected), the Tattoos cannot be identified or observed. The Tattoos are significantly reduced in size: they are a mere 4.4% to 10.96% of the size that they appear in real life. … Further, the Players’ quick and erratic movements up and down the basketball court make it difficult to discern even the undefined dark shading.”
Understanding De Minimus Use
The concept of de minimus use in copyright law cases is an important one to understand. This term refers to the idea that a work can be used without permission for a limited purpose if it does not cause any significant harm or affect the value of the original work. In other words, when using another person's copyrighted material, you must consider whether it would damage their rights and profits enough to justify legal action. If not, then your use is considered de minimus and no infringement has taken place. Courts often look at factors like how much of the original work was copied, how recognizable it is, and what effect its usage had on potential profits when determining whether a use qualifies as de minimus or not.
The Hangover: S. Victor Whitmil v. Warner Brothers
In 2011, S. Victor Whitmill, a tattoo artist who had created Mike Tyson's facial tattoo, filed suit against Warner Brothers for copyright infringement when they featured the tattoo in the hit comedy film The Hangover without his permission. Whitmill argued that the tattoo was an integral part of the movie's plot and sought financial compensation for its use along with an injunction. Ultimately, the parties settled the case out of court, with Warner Brothers agreeing to digitally modify the tattoo in the DVD release of the film.
Shining Light on Tattoo and Copyright Claims
The cases mentioned above shine a light on the rights of tattoo artists and ownership rights of their work. When you get a tattoo, it becomes part of your body and is something that's uniquely yours. However, the artistic rights to the design belong to the artist who created it. This means that if someone else wants to use or reproduce your tattoo in any way – like in a movie or video game – they must first obtain permission from the original artist.
Getting a Release from the Artist
If you have tattoos and wish to use them in a manner that is considered commercial use, your should seek a release from the tattoo artist. A release will provide you with the right to use your tattoo in films, TV shows, music videos, video games and other mediums. Without a release from the artist, any commercial use of a tattoo is considered copyright infringement and can result in legal action.
Conclusion
While many people would expect a tattoo on their own body would give them exclusive rights to use their image a likeness, inlacing the tattoo art, for commercial uses. However, this is not the case. The original artist still holds copyright to the design, meaning that permission must be sought if a tattoo is to be used in any form of commercial media. If you are thinking of using your own tattoos or someone else’s for commercial use, it’s important that you seek permission and obtain a release from the artist. Doing so will help protect you against potential legal action.
Do you have questions about copyright law or other legal issues? If so, contact us Today at our Bergen County Office. Call Us at (201) 904-2211 or email Us at info@pjlesq.com
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