Cynthia Zhang is a 3L JD Candidate at Osgoode Hall Law School.
Recently in Alexander v Take-Two Interactive Software, Inc, a jury of the US District Court of the Southern District of Illinois concluded that tattoo artist Catherine Alexander has a valid copyright claim in the designs she tattooed on World Wrestling Entertainment Inc. megastar Randy Orton. Orton’s likeness was licensed through defendant WWE to defendant Take-Two Interactive Software, a video game publisher. Since 2005, Take-Two has owned the video game developer that produces the popular WWE 2K series of pro wrestling sports simulation video games. Interestingly, the jury only awarded plaintiff Alexander $3750 USD in damages. This is a far cry from the revenues earned on the WWE 2K games, which have sold hundreds of thousands of copies each. This development has led legal commentators to observe that, unfortunately, the copyright law surrounding celebrity tattoos remains unclear.
Copyright protection over tattoos has been a hot topic for some time. IPilogue writers have previously discussed the Kat Von D portrait infringement claim and the NBA 2K dispute, the latter having also featured Take-Two as defendant. Some tattoo artists may see copyright protection and the ability to raise an infringement claim as a just outcome or a validation of their art. However, numerous considerations give pause for thought when it comes to copyright and tattoos.
An oft-deliberated concern is that the medium of tattoos is a human body. This discussion raises questions of personal agency and asks how an artist can have ownership over their client’s body, even though it’s how their work is physically fixed. Another important factor that’s less often discussed is how increasing copyright protection will affect the tattoo industry itself. Tattoo artists currently benefit greatly from lax copyright enforcement – popular subject matter for tattoos includes famous artworks, celebrity portraits, and quotes from books and movies. As seen in the Kat Von D case, treating tattoos identically to other artworks can open the door for claims in the opposite direction as well. Furthermore, many popular tattoo designs are very similar to one another and can be virtually indistinguishable from one artist’s execution to the next. Take Orton’s tattoos that were the subject of debate in the Alexander case, for example. They were described as “tribal tattoos, skulls, a bible verse, and a dove and rose”. All these elements have been common building blocks of tattooing since the early days of the industry. Their combined application on Orton’s body may be technically unique but is certainly not groundbreaking. Indeed, copyright vests in any original work – but are these common types of tattoos original enough?
If copyright protection of tattoos becomes more rigorous, celebrities will likely circumvent the issue by always demanding a contractual assignment of rights before getting tattooed. The tattoo process could follow the model of other commissioned work, such as logo design. For now, the law is still hazy. Alexander has shown that even a successful claim of infringement in such cases may not be worth the effort for a tattoo artist.