“These lawsuits make it clear that tattoo artists are seeking stronger protections for their work, and that courts are at least open to that idea.”
Tattoos have been around for thousands of years, but their popularity has grown significantly. About 13% of baby boomers had at least one tattoo, compared to 32% of Gen Xers and 41% of millennials, according to 2021 data. Aside from disagreements about the appropriateness of visible tattoos in certain workplaces, tattoos in general pose little, if not legal, headache to their owners. That may no longer be the case, as tattoos have become more common among celebrities and their likenesses are commonly drawn in digital media.
Despite relatively few tattoo copyright lawsuits, 2023 could be the year of change.
Alexander v. Take-Two Interactive Software, Inc. et al.
2022 ushers in a new era of tattoo copyright litigation. Alexander v. Take-Two Interactive Software, etc.Tattoo artist Katherine Alexander sued the defendants in the United States District Court for the Southern District of Illinois, alleging copyright infringement by the defendants for alleged unauthorized use of her tattoo designs in the WWE 2K video game series.
Between 2002 and 2008, Alexander gave WWE professional wrestler Randy Orton several tattoos, including tribal tattoos, Bible verses, doves, roses, and skulls. A digital reproduction of the likeness later appeared in Take-Two’s WWE 2K video game series. Creating Orton’s digital images required no artistic input other than reproducing reference photographs. After unsuccessfully negotiating a license, Alexander sued Take-Two, claiming unauthorized use of her original work.
Defendants present an affirmative defense of fair use, at least USE AND IMPLIED LICENSE. On partial summary judgment, the court found that Alexander owned valid copyright in the tattoo at issue and defendant copied her work.dismissed defendant’s claim at least Although the defense is impracticable, we have found admissible questions of fact with respect to the fair use and implied license defenses. Ultimately, only the fair use issue went to the jury.
In October 2022, a jury found that Take-Two had violated Alexander’s copyright and awarded her $3,750 in damages but denied lost profits. This makes Alexander’s case the first of its kind to go to trial and could open the floodgates for future tattoo copyright lawsuits. And given the novelty of the issues presented, defendants will almost certainly appeal.
Hayden V. 2K Games, Inc. and others
A very similar case in the US District Court for the Northern District of Ohio presents many of the same issues.of Hayden V. 2K Games, Inc. and othersTattoo artist James Hayden is suing video game publishers 2K Games and Take-Two Interactive Software for copyright infringement, and the defendant’s use of his tattoo designs violates his registered copyright. I claim to use it.is similar to alexander For example, 2K Games products use digital reproductions of several NBA player likenesses, including tattoos.
In their motion for summary judgment, defendants asserted an affirmative fair use defense. at least USE AND IMPLIED LICENSE.coping with at least Using the defense, the court held that it was a juror’s question whether the tattoo was “observable” and whether the defendant’s reproduction diminished the original work. , the court found that while the public element favored the defendant, every fair use element presented a question of fact. It was found that a jury should decide whether a person intends to license a license.
The trial is likely to start in 2023.
A new era of courtroom tattoos?
both alexander When Hayden The case is a marked departure from recent history.
In 2020, the US District Court for the Southern District of New York reached the opposite conclusion. alexander When Hayden court in a similar case.of Solid Oaks Sketches, LLC v. 2K Games, Inc. et al.plaintiff Tattoo Licensing Firm alleges that the video game publisher’s reproduction of the actual tattooed basketball player infringed its copyright in the tattoo design. It granted summary judgment and accepted all three defendants’ affirmative defenses of fair use. at least USE AND IMPLIED LICENSE. The court noted that the 2nd Circuit has not ruled on the precise circumstances under which an implied non-exclusive license can be found, but that a player requests to have a tattoo made and a tattoo artist Here he found one because he inked the design. And the tattooists knew that players were likely to appear in the media.
These lawsuits make it clear that tattoo artists are increasingly demanding greater protection for their work, and that courts are at least open to that idea.
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Photo by Aleph Vinicius
