The question of whether tattoos can be copyrighted has come up time and again in numerous cases in the past decade. However, it caught my attention when in 2011, Mr. Victor Whitmill, moved the US court seeking an injunction over the release of the movie The Hangover II because the tattoo designed by him had been used in the movie without his permission. Mr. Victor Whitmill is the artist who painted Mike Tyson’s remarkable tribal face tattoo. Ed Helms’s character in the movie The Hangover II wakes up in the morning with Mike Tyson’s tattoo on his face. Though the case was settled out of court, the judge seemed to be more convinced towards the arguments given by Mr. Whitmill alleging that his copyright had been infringed by Warner Bros.[1]
On 26th March 2020, the US court, in another case of copyright infringement of a tattoo artist, ruled against the artist citing reasons that shall be studied and analyzed by academics and lawyers in times to come.[2]
Briefly, the facts of the case are- Solid Oak Sketches is a tattoo company that has tattooed on athletes like LeBron James, Kenyon Martin, Eric Bedose et al. The company moved the US court against the company Take Two Interactive Software (publisher of the popular NBA 2K basketball series video games) on grounds that the latter had infringed their copyright by showcasing the tattoos on the players’ avatars, that had been designed by them, in the video games. The defendants argued that the use of tattoos was de minimis because it reflected only 0.000286% to 0.000431% of the game’s data. [3]They argued that since the players’ avatars move quickly and continuously on the screen, the gamers do not see anything more than a blur. The defendants also used the defence of “fair use” to justify the use of tattoos. It is interesting to observe that the US courts consider various factors to determine fair use, one of which being whether the use was “transformative” that is whether it served a different purpose than the original purpose. The judge opined that the de minimis argument was acceptable as the tattoos of the players’ avatars were as meekly noticeable as their noses. The judge also accepted the fair use defence and stated that the real tattoos and the ones in the video game were designed for completely different purposes.[4]
In my opinion, both the tattoos on the player and their avatar are a reflection of their identity. In other words, in both cases, in this instance, they become a medium to identify the players whether on the real court or in the video game. How exactly are the purposes different then? (Let me know in the comments if you have a different view or justification on the said opinion of the US court.) Moreover, an argument of the implied license granted by the tattoo artists to the people they paint tattoos on also came into light.
Implied License Granted by Tattoo Artists
When tattoo artists paint tattoos on a person’s body, it is accompanied by a very broad implied license.[5] It includes the rights of the person to make an appearance in public, to live their life normally and to display their body as and how they would like to display it. In the case of NBA players mentioned above, LeBron James filed a declaration in support for the defendants stating that his tattoos were part of his “persona and identity”. He added that to depict him most genuinely, any reproduction of his image necessarily needed to have the tattoos. Therefore, this gives us another question to ponder upon- does the broad implied license also include the use of tattoo in the person’s image used for commercial purposes, say in video games? With more cases on the subject, such questions will hopefully get satiating answers.
A very basic question that might cross our readers is that- can copyright be claimed if the medium of fixation of work was someone’s flesh? The courts have mostly opined in affirmative to the aforementioned question as can be seen in the two cases quoted before. As is known, copyright exists when an original work is portrayed on a fixed medium of expression. Tattoos that are the original idea of a tattoo artist, fulfil both these requirements. Hence, they are copyrightable. In India, there are no specific laws granting copyright protection to tattoos but its stand can be understood from the incident where the Indian Copyright Office granted copyright registration to Shahrukh Khan for his tattoo portrayed in Don 2.[6]The tattoo was later used on several merchandises sold during and after the success of the movie.
Needless to say, because of such complications stirring up, celebrities and athletes prefer to get a release of the intellectual property signed by the tattoo artist before getting themselves inked. It is a wise choice for celebrities to avoid copyright infringement lawsuits later. Although it is hoped that the releases signed by tattoo artists have something to offer them as well. Moreover, not all people get a release signed by their tattoo artists. In such cases, it would be interesting to wait and watch the evolution of the courts’ stance around the subject of rights of tattoo artists over their original tattoo art on human bodies.
[1] Victor Whitmill v. Warner Brothers
[2]Solid Oak Sketches, LLC v. 2K Games Inc. and Take-Two Interactive Software, Inc.
[3] Thomas Baker, NBA 2K Tattoo Copyright Suit Offers Two Compelling Legal Arguments, But Only One Seems Practical (Forbes, 04 January 2019) <https://www.forbes.com/sites/thomasbaker/2019/01/04/lebron-smartly-sides-with-the-producers-of-nba-2k-in-tattoo-copyright-case-but-will-that-be-enough/> accessed on 09 August 2020
[4] ibid
[5] ibid
[6] SRK registers Don 2 tattoo in his name (The Indian Express, 15 July 2011) <http://archive.indianexpress.com/news/srk-registers-don-2-tattoo-in-his-name/817871/> accessed on 08 August 2020
Really really interesting read . Never thought tattoos can make for a legal case in this area of law . Greatly put up by author!! Keep enriching us with such diverse aspects .
I’m glad you liked it, Abhimanyu. Thank you so much!
Many of people have no idea about it. I read your previous article. All are gr8.
Keep it up.