Think Before You Ink

Recently, tattoos have been the subject of many intellectual property lawsuits. Copyright infringement has been the main issue, with both tattoo artists suing companies for infringement due to the companies portraying their tattoos without permission and other artists suing tattoo artists for infringement due to the copying of their original art in tattoos.

This past spring, the Supreme Court gave their decision in Warhol v. Goldsmith, holding that Andy Warhol infringed on photographer Lynn Goldsmith’s copyright when he created a series of images based on Goldsmith’s picture of the artist Prince. While not directly related to tattoos or tattoo artists, a number of parties have cited to Warhol when asking the courts to reconsider the prior rulings in their tattoo copyright cases.

The Copyright Act has two requirements for a work to be protected: (1) the work must be original and (2) the work must be fixed in a tangible medium. First, tattoos are a fixed work of art because they are “sufficiently permanent or stable…” as required by the Copyright Act. Next, in order to be original, a tattoo design must have at least a minimal amount of creativity. One of the first cases pertaining to tattoos and copyright infringement occurred in 2022, when tattoo artist, Catherine Alexander, sued World Wrestling Entertainment (WWE). Alexander tattooed a professional wrestler whose appearance, and subsequently tattoos appearance, appeared in a number of WWE video games. The judge found that it was undisputed that Alexander held valid copyrights in 5 out of 6 of her designs and sent the issues of the defendant’s affirmative defenses to the jury. The jury was not persuaded by the defendant’s fair use defense because the defendant copied distinct details of the tattoos and because the details were featured prominently. The jury ruled for Alexander and awarded her the equivalent of a licensing agreement fee. The jury did not award her any amount for the commercial success of the video games because they decided that the tattoos did not help the video games’ success. 

Since the WWE case, there has now been a steady stream of cases involving tattoos. A celebrity tattoo artist, Kat Von D, tattooed a portrait of Miles Davis based off of a photo that the customer provided of him. The photographer who took the photo sued Von D for copyright infringement. Initially, the judge refused to find copyright infringement, but after the Warhol decision, the photographer urged the judge to reconsider. In Warhol, Goldsmith’s photograph and Andy Warhol’s painting of the photograph shared the same purpose and were both of a commercial nature, which defeated Warhol’s fair use argument. Similarly, the photographer in the Von D case argued that Von D used his photo as a reference, which is exactly what an artist would license his photographs for. Under the Warhol decision, this defeats Von D’s fair use argument because the photographer’s original photograph and Von D’s use of the photograph share the same purpose—portraying Miles Davis—and the use for both is of a commercial nature.

Another tattoo artist brought a copyright infringement suit against Netflix for their use of a clip in their documentary “Tiger King” that featured the artist’s tattoo design.  The tattoo artist claimed that because of the ruling in Warhol, Netflix couldn’t use transformative use as a defense in its use of the tattoo design because the purpose of the tattoo artist’s design and the purpose of using the clip were the same. The judge disagreed, however, and ruled that the Warhol decision did not negate Netflix’s use of the tattoo design. The judge held that Netflix transformed the use because it was being used to inform the public, not for driving income to a business.

These cases create a dilemma that many tattoo artists have never had to consider before. In many situations of tattooing people, the individual getting tattooed comes into the studio with a picture that is the inspiration for their tattoo. Going forward, tattoo artists will need to determine whether they have transformed the inspiration picture enough to defeat a potential infringement claim.

One avenue for tattoo artists to get in front of copyright infringement cases is to register their copyrighted work prior to any possible infringement. Doing so would allow tattoo artists the opportunity to collect more damages than Alexander was able to in her case against WWE. Artists would be able to collect more damages because having a copyright registration allows artists to collect statutory damages—which are usually between $750-30,000 per work—and attorney’s fees.

Tattoo artists should become aware of the cases involving tattoos and copyright infringement so that they can take measures to properly ensure they don’t accidentally infringe upon another’s work by simply tattooing that work on another’s skin.