Copyright’s Potential Infractions on the Right of Publicity
The intersection of copyright for tattoo artists and the right to publicity remains unresolved, with courts struggling to balance these rights. Tattoo artists seek copyright protection for their designs, while individuals and corporations with tattoos argue they control their own image under the right to publicity.
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A conflict arises between tattoo copyright and one’s right of publicity when the tattoo becomes a key aspect of a person’s public identity, especially for celebrities. Various industries and corporations are the targets of lawsuits by tattoo artists for claims of copyright infringement. Under 17 U.S.C § 106(1), copyright owners are granted the exclusive rights to reproduction of their copyrighted work. Under 17 U.S.C. § 501, to prove copyright infringement requires showing: (1) ownership of a valid copyright; (2) copying of original elements, shown through access and substantial similarity; and (3) that the copying was unlawful, negating legal defenses like fair usage. In response, companies and tattoo artists such as Kat Von D have answered to copyright infringement claims. Tattoo-related copyright claims typically boil down to fair-usage defenses.
The right of publicity grants individuals control over the commercial use of their name, image, likeness, or other identifiable aspects of their person. If a celebrity’s image is used in an advertisement without their permission, they can assert their right to prevent usage or seek compensation for the unauthorized use of their likeness. This right conveys the ability of celebrities to license their image to companies. For example, due to recent Name, Image, and Likeness (“NIL”) changes, collegiate athletes have capitalized off their likeness by licensing it to EA sports, a video game developer, for usage in the new video game College Football 2025.
Similar to Kat Von D’s tattoo copyright dispute, Mike Tyson’s tattoo artist sued Warner Bros. for the recreation and usage of Tyson’s iconic tribal face tattoo on a main character for the movie Hangover Two. The artist and studio settled out of court for an undisclosed amount. In Alexander v. Take-Two Interactive Software, Inc., WWE wrestler Randy Orton’s tattoo artist sued Take-Two for copyright infringement over her tattoos appearing in one of the company’s games. The plaintiff was contracted by Mr. Orton to tattoo six images on him over a period of six years ranging from common traditional tribal pieces to roses, bible verses, doves, and a skull. In its response, the defendant argued three foundational points to assert it was not in violation: (1) the doctrine of fair usage for tattoos within video games; (2) the defendants implied license of usage of the tattoos; and (3) the de minimis usage of the tattoos within their game. The court held the defendant liable for copyright infringement, citing individuals had purchased the game for its realistic depiction of wrestlers, over which the defendant held five copyright claims. The court disagreed with the tattoos falling under the doctrine of fair use, determining that the implied license argument and the doctrine of de minimis use did not meet the criteria for copying works.
However, in the subsequent case of Solid Oak Sketches LLC v. 2K Games, Inc., the court ruled in favor of the defendant corporation in the usage of the likeness of various NBA players that had received tattoos from the plaintiff. The same three-pronged argument used in Alexander v. Take-Two Interactive Software, Inc. of an implied license, de minimis usage, and the fair usage doctrine were enough to beat the defendant’s claim of copyright infringement. The court did not agree with the defendant’s argument that the usage was not de minimis because of the size changes, depiction during gameplay, and lack of evidence put forth by the defendant to show emphasis being placed on the tattoos. The court also determined the usage of the tattoos to be transformative enough to fit the requirements of fair-usage, stating the tattoos were originally created for the players to express themselves, whereas the defendant’s goal was to replicate to the best of their extent the players, not the tattoos.
Evidently, courts have issued various rulings on the topic of tattoos and copyright, with some recognizing tattoos as protected works under copyright law. Others have been more hesitant, especially when tattoos appear on athletes in video games or media. These video game companies have been handed down different rulings with some favorable and some having the outcome of having to pay damages to artists. These inconsistencies often arise from conflicting interpretations of fair use, consent, and the distinction between the medium of the tattoo and its reproduction. The federal court system must come to a consensus on how to handle one’s right to publicity while being a tattooed individual. A balance must be struck between allowing individuals to capitalize from their own image and protecting artists’ copyrights, ensuring that personal rights are not overly restricted by creative ownership claims.