Tattoo Artists’ IP Rights Only Skin-Deep

 

WWE wrestler Randy Orton has some unique ink on his arms and back, created by tattoo artist Catherine Alexander.  Orton—and his tattoos—are featured in the WWE 2K video games.  Alexander claims ownership of copyright in the tattoos, and is suing WWE and the makers of the video games for their depiction of the original tattoos.

This case is one in a string of lawsuits alleging copyright infringement based upon celebrity or athlete tattoos.  In 2017, tattoo artist James Hayden sued the makers of an NBA video game for depicting several tattoos he’d created for LeBron James.  And remember that Mike Tyson-like tattoo on Ed Helm’s face in The Hangover 2?  In 2011, tattoo artist S. Victor Whitmill brought a copyright infringement suit against Warner Brothers Entertainment in an attempt to block the release of the movie.

 

 

Nonetheless, the copyrightability of tattoos remains in question.  These cases frequently settle out of court, and thus we do not yet have a clear judicial determination of whether tattoos on skin constitute copyrightable works of art.

Much ink has been spilled over the legal merits of whether a tattoo is copyrightable.  But legal theory aside for a moment, should tattoos be copyrightable?  Do we want our copyright jurisprudence to venture down a path of allowing one person or entity to have a property right in another person’s skin?

The artistic nature of tattoos makes it difficult to square the tattoo artist’s creative rights with with the tattoo bearer’s bodily autonomy.  Under copyright law, the mere act of displaying a copyrighted work can be an infringement.

Nimmer on Copyright is likely the most widely used treatise on American copyright law.  David Nimmer himself submitted a lengthy declaration for the defendant in the Hangover case.  In his declaration, Nimmer described some of the bizarre outcomes we might see if we decide tattoos are indeed copyrightable:

1. With particular respect to celebrity and athlete tattoos, magazines, TV networks, documentary film makers and others could be required to obtain licenses from tattoo artists behind the celebrity’s or athlete’s tattoos.  If those licenses are not obtained, the celebrity or athlete herself could be liable for contributory infringement.
2. An adjacent or overlapping tattoo might constitute a derivative work, which could itself be an infringement of the original artist’s rights.  Nimmer suggests this could lead to a court order to have the offending work laser removed.
3. The Visual Artists Rights Act allows certain works of art to be granted “recognized stature,” which allows an artist to prohibit intentional or grossly negligent destruction of a work.  Under this Act, if a tattoo were granted “recognized stature,” the artist could obtain a court order barring removal or destruction of the tattoo.
4. Even if the tattooed person goes so far as to obtain an exclusive license of all rights from the artist, that does not necessarily solve the issues described above.  Some copyright licenses can be subject to an inalienable right of the artist to terminate the license 35 years after grant.  As Nimmer explained, “For example, a 20-year old actress might get a tattoo from X, subject to his agreement (negotiated by her counsel) to assign to her all copyright interests in the image and never to terminate the grant.  When she turned 55, she might nonetheless be shocked to learn that X now has the right to block merchandising of her image.”

These may be extreme examples, but they serve to illustrate the difficult intersection of tattoo artistry with existing copyright jurisprudence. Accordingly, Nimmer suggests the best solution might be legislative.  When courts could not square the realities of computer software with existing copyright laws, the Computer Software Copyright Act of 1980 was passed.

Eventually, a tattoo copyright case is bound to reach a court decision.  Until then, the uncertain legal grounds will continue to rest on selective enforcement and out of court settlements.

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