How Tattoos Could Ruin Copyright Law

Did you know that a temporary tattoo almost blocked a major motion picture from coming to theaters near you? In Whitmill v. Warner Bros. Ent. Inc., No. 4:11-cv-752 (E.D. Mo. filed Apr. 28, 2011), artist S. Victor Whitmill claimed that Warner Bros. had infringed his copyright on Mike Tyson’s famous face tattoo. Whitmill originally designed and applied the ink on Tyson’s face in 2003. The design became an instantly recognizable feature of the heavyweight boxer. In Warner Bros.’ film The Hangover Part II, actor Ed Helms sports a similar temporary tattoo. Whitmill saw an advertisement for the film and sued to block its distribution. Although the case ultimately settled, it raised some unsettling issues.

Commentators initially debated whether tattoos could be copyrighted at all. Our very own JIPEL blog considered the issue in 2016 and 2017. Today, most people agree: “tattoos are pretty clearly copyrightable,” says NYU Law Professor Christopher J. Sprigman.

The bigger issue, however, lies in what copyright protection entails. Subject to a few exceptions, copyright law grants the copyright owner exclusive rights to reproduce, distribute, and display the copyrighted work. Since Whitmill owns the copyright in Tyson’s tattoo, Whitmill should have exclusive rights to display the tattoo. Taken literally, this means that if Whitmill doesn’t want the tattoo seen in public, Mike Tyson needs to stay indoors.[1]

“That can’t be right,” says Sprigman, who fervently believes that Tyson should be able to show his face in public. “If not, then copyright law has metastasized into some sort of monster.”

Despite the monstrous consequences, several tattoo artists and companies have claimed ownership in elements of celebrities’ bodies. For instance, artist Chris Escobedo sued the video game publisher THQ over the depiction of MMA fighter Carlos Condit’s tattoo in the video game series UFC Undisputed. Similarly, artist Catherine Alexander has an ongoing lawsuit against World Wrestling Entertainment Inc. and Take-Two Interactive Software Inc. for reproducing the tattoos of star wrestler Randy Orton in the WWE 2K video game series.

While many of these disputes have ended in settlements, the Southern District of New York provided a thoughtful answer to the copyright concerns earlier this year. In Solid Oak Sketches, LLC v. 2K Games, Inc., No. 16-CV-724-LTS-SDA (S.D.N.Y. Mar. 30, 2018),the Southern District considered whether the tattoos depicted on LeBron James, Eric Bledsoe, and Kenyon Martin in the NBA 2K14, 2K15, and 2K16 video games infringed on Solid Oak’s copyright of those tattoos. The dispute arose after the basketball players granted Take-Two Interactive permission to use their likeness in its popular video game series. Take-Two designed and marketed realistic depictions of the players—including their tattoos. Solid Oak sued. The case ultimately raised an unusual question: Can LeBron James license his likeness to others, including his tattoos?   

To put this in perspective, Solid Oak sought exclusive control over when and where the tattoos appeared. If the court sided with Solid Oak, LeBron James could still license his likeness in general, but he would not be able to license his tattoos—he would be a tattoo-less LeBron, which isn’t exactly a realistic depiction. What would a tattoo-less Post Malone look like? It takes a bit of imagination.

Importantly, the Southern District sided with Take-Two Interactive and the other defendants. In doing so, the court recognized an “implied license” between the basketball players and Solid Oak, such that the players have a right to license their tattoos to third parties as part of their likeness. The court found that the tattoo artists “intended the [p]layers to copy and distribute the [t]attoos as elements of their likeness, each knowing that the [p]layers were likely to appear ‘in public, on television, in commercials, or in other forms of media.’” So, absent an agreement to the contrary, the players had an implied right to allow companies like Take-Two to reproduce their inked bodies.  

Sprigman feels like the court’s decision was not only good, but necessary. “Allowing the tattoo artist to control the way that LeBron James presents himself to the world—or authorizes his likeness to be presented to the world—would be a deep invasion of his personal autonomy.”

That said, not everyone agrees with Sprigman and the Southern District of New York. In Alexander v. Take-Two Interactive Software, Inc., No. 3:18-cv-00966 (S.D. Ill. filed Apr. 17, 2018), Take-Two Interactive raised a similar implied license defense to its depiction of wrestler Randy Orton’s tattoos, but an Illinois judge found it unconvincing. According to the judge, the evidence is unclear whether an implied license between the tattoo artist and Orton exists. The case will therefore go to trial.

As Solid Oak and Alexander demonstrate, the law surrounding copyrighting tattoos is far from settled. The consequences, however, may be significant. Sprigman says that this provides a valuable lesson: “You can’t just unthinkingly parse through the elements of a copyright claim because you can end up with some insane results.” Right now, those results are unclear. Let’s hope they’re not so monstrous.

[1] To be clear, Whitmill never tried to keep Tyson indoors. According to Sprigman, however, this possibility could arise if copyright law were applied literally and unthinkingly.