A Skin Deep Dive into recent tattoo and copyright cases
Few areas are as colorful and contentious as the world of tattoo art in copyright. Tattoos, once considered a purely personal form of expression, have increasingly become the focus of significant legal debates. As the popularity of tattoos grows, so too does the complexity of copyright issues surrounding them. The two recent disputes discussed here involve fair use and tattoos. The first, whether a video game can adapt a tattoo artists work. The second, whether a tattoo artist can adapt photographs.
Part I: Tattoo Artist Wins Suit for Video Game Lifting His Art—But Is Awarded Nothing
In a federal case in Illinois, Alexander, a tattoo artist, sued against Take-Two Interactive, accusing them of copyright infringement for using wrestler Randy Orton's tattoos in their video games. The jury initially sided with Alexander, awarding him $3,750 in damages. That said, the court later zeroed out these these damages.
The court's decision was based on the commercial use of the tattoos within the game, especially given the "Create-A-Superstar" feature, which allowed players to customize characters using Orton's ink. Alexander's inability to substantiate his damages claim with concrete evidence underpinned the court's ruling. The court also highlighted the absence of a market for licensing tattoos in video games.
This ruling underscores a significant point for future cases: plaintiffs who hold timely registered copyrights and employ adept damages experts may find themselves in a stronger position.
The case is Alexander v. Take-Two Interactive Software, Inc., 18-cv-00966-SMY (S.D. Ill. Sept. 25, 2024)
Part II: Famous artist Kat von D’s use of a photo of Miles Davis for a tattoo ruled non-infringing, fair use not reached, and is presently on appeal
Famous tattoo artist Kat von D inked a portrait of Miles Davis, based on a photo by Jeffrey Sedlik, onto her friend Blake Farmer. Sedlik's famous photograph of Davis, named one of Life Magazine’s “Pictures of the Year,” shows Davis with a finger to his lips.
In January 2024, a jury ruled unanimously that Kat von D did not infringe on Sedlik’s copyright because the tattoo was not substantially similar to the photograph. This verdict sidestepped the broader issue of fair use in tattoo art, leaving many questions unanswered about the transformative nature of tattoos and the potential effect on licensing markets.
The case, Sedlik v. von Drachenberg et al., No. 2:21-cv-01102, C.D. Cal. 2024, is on appeal.
Our intellectual property attorneys stand ready to assist tattoo artists and all owners of creative works when infringement occurs.