Inked in the Law: Fair Use of Tattoos is Fair Game
Within the past two years, two federal district courts have found for different sides of the same issue: is a tattoo artist’s copyright in her designs violated when a video game depicts a celebrity athlete with tattoos?
Last month, the Southern District of Illinois found the WWE and a video game developer liable for copyright infringement of World Heavyweight Champion Randy Orton’s iconic sleeve tattoos. The tattoos were designed by Catherine Alexander, plaintiff in Alexander v. Take-Two Interactive Software, Inc., and are included as part of Orton’s likeness in WWE’s best-selling video games.
When asked the same question in 2020, the Southern District of New York decided in favor of the video game developer in the case Solid Oak Sketches, LLC v. 2k Games, Inc. That case involved tattoos represented in its basketball version of the video games series, NBA 2k. The Court held the in-game depiction of the tattoos on LeBron James, Eric Bledsoe, and Kenyon Martin, were not copyright infringement. The result of these two cases is a draw between video game producers in one corner, and tattoo artists in another.
I argue that New York got it right; Solid Oak was the correct interpretation of copyright law and a realistic assessment of how the video game industry should operate. The court relied on the doctrines of (1) fair use and (2) implied license in finding that video game developers should not be held liable for portraying a celebrity athlete’s identifiable tattoos. It would be best for the stability of the intellectual property legal system for Alexander to be resolved in the same manner as Solid Oak on appeal.
First, use of a celebrity’s tattoos in video games is legitimized by the fair use doctrine. The Copyright Act provides four factors to be considered in determining fair use of an artist’s work. These are: (1) the purpose and character of the use (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used and (4) the effect of the use upon the potential market for or value of the copyrighted work. The most important of these factors is the first one: the purpose of the use of the tattoos in the video game. Here—in both cases—the video game developer’spurpose is entirely different from that for which the tattoos were originally created; it is to accurately depict the players as they look, as opposed to a tattoo artist’s purpose of artistic representation.
Second, the artists granted an implied license to display the tattoos when they drew them on celebrities, who are often seen in public. An “implied license” refers to an unwritten license to use a work, inferred from the circumstances, the conduct of the parties, and other indicators of intent. If there is implied license, a tattooo artist would have no basis for his or her claim of infringement regarding depiction of her designs. The Solid Oak Court determined that the basketball players had implied license to appear in any forum while bearing the tattoo and to freely allow others to copy their likeness, including the tattoos. The Alexander Court should follow suit. Here, like in Solid Oak, the artist completed the tattoos at the athlete’s request, was compensated fairly for them, and allowed the athlete to leave the tattoo parlor without any stated limitations on how the tattoos were displayed. Especially because this involves a celebrity athlete, it is clear that Alexander, as the tattoo artist, knew the tattoos would be publicly seen, photographed and videoed.
Until the written court decision is made public, we can only speculate as to how Alexander was found to differ from Solid Oak, but the result will surely have an impact on the relationship between tattoo artists and video game developers everywhere.
Most notably, this case sets a low bar for economic recovery of damages on the basis of copyright infringement. All tattoo artists must show is that their tattoos were included in the likeness of athletes who appear in video games without their express permission. However, considering that Alexander was only awarded $3,750.00, this may discourage other tattoo artists from pursuing litigation. Alexander filed her case against the video game company four years ago over tattoos she inked close to twenty years ago. The low amount awarded shows that a jury does not agree that the inclusion of tattoos in the video games were, in fact, a selling point to the game. Nevertheless, the decision appears to have left open the possibility for tattoo artists to recover much greater amounts, had the copyrights to the tattoos been previously registered.
The result is likely to have a much bigger impact on video game producers and digital content creators in general, who have been warned to be more cautious about depicting body art. Securing licenses to do so may become the norm as this legal rumble continues. Alternatively, video game producers may also consider designing their own tattoos for the athletes’ avatars.
Litigation involving copyright infringement in video games will proliferate, at both the district court level, and in higher courts. When it happens, judges should consider the strong implications this issue has on fundamental freedoms, including self-expression and bodily autonomy. Sports associations have already begun to ask athletes to secure waivers from tattoo artists, forcing tattoo artists to surrender any and all rights they may have in relation to the copyright of the tattoo.
If the rules were settled that indeed celebrity athletes do legally require express permission from a tattoo artist before displaying such artist’s work anywhere that may be deemed commercial, it would be as if the athlete has ceded their right to express themselves and control their bodies. The once relatively simple act of contracting a well-loved sports champion to appear on the front of a cereal box may suddenly become complicated if the law required them to first obtain the consent of the tattoo artist who inked a skull, star, or significant date on their arm when they were eighteen. For reference, LeBron James was in high school when he got the lion tattoo on his right bicep. It is one of the tattoos that is the subject of litigation in the ongoing case of James Hayden v. 2K Games, Inc.
Until this case is decided, we’ll hang on to see what happens of the tattoos of the Apex Predator or King James, and others like them.
Alyanna Pauline Apacible
GLTR Assistant Editor; Georgetown Law, LL.M. expected 2023; University of the Philippines, J.D. 2016. © 2022, Alyanna Pauline Apacible