Tattoos & copyright law

LEGAL ENTERTAINMENT

Tattoos are a way to express yourself to the world. People go into tattoo shops with the intention to put something on their skin to represent a part of them. Some people bring their own personal design, while most come in with an idea and ask the artist to create the design. During this process, it’s doubtful that people getting the tattoo are thinking about the legal consequences attached to displaying someone’s art on their skin. However, nowadays with the popularity of tattoos continuing to rise, lawsuits for infringement have started popping up over the years.

Copyright protects original works of art that are fixed in some sort of medium. In the situation of a tattoo, generally the tattoo is original to the tattoo artist and the medium is the person’s skin. Even though the tattoo artist permanently places the art on another’s body, the tattoo artist is considered the owner of the rights. This begs the question, does that mean that the individual must ask for permission every time they are in a photoshoot, in a film, etc.? Luckily, industry custom grants an implied license to display the tattoo. The issues arise when there is misappropriation of the artwork into another format that is not part of the person’s day-to-day life.

The first major case came up in 2011 when the tattoo artist that created Mike Tyson’s face tattoo, S. Vitor Whitmill, sued Warner Brothers for the use of the face tattoo in the move “The Hangover Part II.” The case ended up settling outside of court but not before the judge determined that tattoos are copyrightable works of art. Warner Bros. argued that the use of the tattoo was a sort of parody and fair use. The judge swung a Tyson punch and knocked that argument down, with a preliminary finding that the use of the tattoo in the movie did not comment on the artist’s work or have any bearing on the original work at all. Since the case looked to be moving in favor of the tattoo artist, it wasn’t surprising for the parties to settle out of court.

A more recent case was filed in February 2016 by Solid Oak Sketches, LLC, the owner of multiple prominent and well-known tattoos displayed on top NBA stars, including LeBron James and Stephen Curry. The case is against 2K Games, Inc. and Take Two Interactive Software, Inc., the creators of the NBA 2K series video game. This lawsuit specifically concerns the “NBA 2K16” release. In the video game, there are over 400 realistic avatars of NBA stars. To create an authentic atmosphere, as described by defendants, the avatars have accurate tattoos displayed on the skin of the players. Solid Oak is asking to be compensated for the use of eight tattoos owned by Solid Oak and enter into a license agreement for the use within the video games. The defendants deny that any infringement is occurring by asserting that the use is de minimus and protected by fair use.

Fair use is a statutory defense to copyright infringement. Section 107 of the Copyright Act, provides that if someone uses a protectable work for purposes such as criticism, comment, news reporting, teaching, scholarship and research, the alleged infringers are protected from claims of copyright infringement. To decide whether or not the new work falls under fair use, the court will look to four factors: (1) the purpose and character of the use; (2) that nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use on the potential market or value of the copyrighted work. No factor is dispositive, so all factors must be considered. As for the de minimus defense, the defendants are basically arguing that the use of a few tattoos is “not enough to matter” when considering how many NBA avatars are represented and the total content of the game.

Take Two filed a motion for judgment on the pleadings last month arguing that defendants have the right to depict players in real life to provide an authenticity to the game. Take Two will have a hard time arguing fair use under this type of motion. This motion is reviewed like a 12 b(6) motion to dismiss the complaint. The court takes all facts as true and must look at the facts favorable to the plaintiff. These motions are assessed on the pleadings only, and without any outside evidence. The party bringing the motion has to show that there is no genuine issue of fact and that the party should be granted the motion as a matter of law. This is a tough burden to meet, especially when dealing with a highly fact based claim.

In its brief, Take Two argues that deciding the case in favor of the plaintiffs would be averse to the entertainment industry, and force creatives in all mediums to acquire permission to include the depiction of tattoos in their work. Take two concludes that it would be burdensome on all parties and the individual with the tattoo couldn’t be just photographed or casted in a film without talking to the original tattoo artist. The brief is basically asserting that this would ultimately cause a “chilling” affect and will either cause creatives to avoid using these types of works within their work to side step liability or will have to deal with a lot more contracts creating a higher cost; or even prevent some entertainment individuals from getting a tattoo designed by the artist.

Take Two’s argument seems a little overbroad as to the repercussions of a decision in favor of Solid Oak. There is already an understanding that the industry provides for an implied license to display the piece, and the individual can live their life. Tattoo artists don’t appear to be interested in requiring the individual to hide their skin every time a camera is around, but are more concerned with the misappropriation of the artwork. A decision in favor of Take Two would limit the ability for a tattoo artist to protect their artwork by opening up the door to fair use for copying in other forms of protected works. The industry will have to wait and see if this case will actually bring some solid precedent to the issues or if this lawsuit will settle out of court like the rest.