A recent trial has highlighted some of the unique legal issues posed by cases that seek to apply copyright law to tattoo art.  At the center of the case is a group of tattoos on the back and arms of pro wrestler Randy Orton—tattoos which were then incorporated, without the artist’s permission, into a series of World Wrestling Entertainment video games as part of Orton’s appearance in the game.
 
In April 2018, tattoo artist Catherine Alexander sued WWE, Take-Two Interactive Software Inc., and several related video-game companies, alleging they infringed on her copyright by depicting, in their video games, the tattoo work she did for Orton.  (She did not sue Orton himself, although he was a witness in the case.)
 
In late 2019, both sides moved for summary judgment on certain aspects of the case, in an effort to narrow the issues that would be at stake in a trial.  Alexander largely prevailed on her partial summary judgment motion, establishing that she owned valid copyrights in five artworks and that the works had been copied by defendants without permission.  Defendants, for their part, sought summary judgment on several grounds, arguing that they had good defenses to the copyright claim and should not be held liable because: 1) they had an “implied license” to use the tattoo art; 2) their use of the art was “fair use”; 3) their use of the works was “de minimis” (a defense that is available when copying that is so trivial or fleeting that it simply cannot support a claim for infringement); and 4) Alexander could not show any damages.  The Court, however, rejected the de minimis defense entirely, and held that the other defenses should be addressed by a jury at trial.
 
Thus, when a jury trial began this fall, the primary issues were whether Defendants had an implied license to use the works, whether their use was “fair use,” and how much (if anything) Alexander should receive in terms of damages.  Curiously, however, the implied license defense was ultimately not submitted to the jury; there was no jury instruction on this topic, although apparently both sides sought one.  
 
Ultimately, the jury rejected the Defendants’ fair use defense, and with the other two affirmative defenses already off the table, that meant the Defendants were liable for copyright infringement.  On the question of damages, however, the jury awarded Alexander only $3,750 for the use of the tattoo art.  And further, when asked how much of the video games’ profit was derived from Defendants’ use of the works, the jury’s answer was zero. 
 
What This Case Tells Us—and Doesn’t Tell Us
 
The Alexander case is one of the first, if not the first, tattoo copyright cases to proceed all the way through a full trial.  But even after years of litigating the matter to its conclusion, the case is also notable for the legal issues it doesn’t squarely tackle. 
 
While in this case, the Court ruled that Alexander owned the copyright in the tattoos at issue, other potential litigants should keep in mind that this may not automatically be the case.  For example, one could imagine a case where a court might find that a very simple tattoo design might not be creative enough to warrant copyright protection; likewise, the ownership of the copyright might be a less straightforward question in a case where a tattoo artist simply copied a design provided by the client, or if the parties sign an agreement clearly providing otherwise.  (Indeed, see here for a recent lawsuit by a photographer who sued a tattoo artist for turning his photo into a tattoo without permission.)  But this case does remind us that courts are comfortable, at least in principle, with the idea that a tattoo artist can own a copyright in an artwork even though the artwork itself is inked on someone else’s body. 
 
In a further recognition of the unique issues posed by tattoos, the Defendants had argued that, by tattooing Orton in the first place, Alexander necessarily had granted Orton an “implied license” to make her tattoo art a part of his public image—and thus, he could then sublicense it for use in a video game, as part of his likeness.  In her summary judgment decision, the district judge concluded that Alexander may well have granted Orton some kind of an implied license, but that there were factual issues as to whether that happened and if so, what the scope of that license might be.  Attorneys practicing in this area have noted that the implied license theory could simplify the thorny copyright questions in the tattoo industry, but its scope needs to be further clarified.  For now, this case sheds little light on that question; the judge did not decide it on summary judgment, and ultimately did not submit it to the jury either.  It is worth noting, however, that as courts inevitably revisit this implied license theory, they will need to take into account the fact that in this context, an artist’s copyright in their work is being balanced against the tattoo-bearer’s right to control their image; since a tattoo becomes part of someone’s appearance, should a person with tattoos need to obtain permission from someone else in order to have their likeness accurately reproduced in media?
 
As for the Defendants’ “de minimis” argument, the Court’s summary judgment analysis first noted that it is not entirely clear that such a defense is recognized in the Seventh Circuit (although some other federal courts, including in the Second Circuit, have acknowledged its viability).  The Court held it did not need to resolve that question, however, because it did not apply here, where the Defendants copied the tattoo artworks in their entirety.  (This is perhaps an oversimplification of the defense, which also generally involves analysis of “observability,” i.e., whether the borrowed artwork is really only fleeting or otherwise not particularly visible in the allegedly infringing work.  See one example of a case dealing with this issue here.)   
  
The Court’s summary judgment decision also left the fair use issue to the jury.  Fair use is an affirmative defense to infringement that involves weighing four factors outlined in the Copyright Act (see here for the statute itself)—but case law is already notoriously complex and challenging to apply (as evidenced by a recent Supreme Court case, among other things); see here for our many musings on this subject.  Indeed, another lawyer following this case has opined that the judge should not have left this difficult question totally to the jury. 
 
When it comes to these affirmative defenses, this case arguably sets up a conflict between its outcome and that of a very similar case decided a few years ago in New York.  The full details are here, in our post on that case, but in short, the earlier case involved tattoo designs on pro basketball players featured in a NBA video game series.  And there, a New York federal judge granted summary judgment in favor of the video game defendants, ruling that all three of the same defenses at issue in Alexander’s case—de minimis infringement, implied license, and fair use—prevailed as a matter of law.
 
As to damages, the case is a bit of a mixed result.  The plaintiff here did prevail on her infringement claims, which at the very least sends the message to other media companies that they cannot completely brush off the risk of viable claims by tattoo artists, and should consider ways to mitigate that risk (perhaps by seeking permission and paying license fees to the artist before reproducing the art).  On the other hand, the relatively low damages figure awarded to Alexander indicates that the potential amounts involved in this type of licensing may not be high, and artists may feel that the cost of litigation is not worth the return.  (As recently noted in Forbes, however, a new streamlined small-claims process for copyright disputes may also provide tattoo artists with an avenue to pursue claims like this one in a way that is more financially manageable than a full-blown multi-year federal lawsuit.)
 
On the subject of damages, however, it is worth noting that Alexander only registered her artworks in 2018, after the infringement—so she was not eligible for statutory damages under the Copyright Act, which is why she only sought her actual damages and the defendants’ profits, as well as her litigation costs under 17 U.S.C. § 505.  This case is a reminder to tattoo artists—and other independent artists as well—that registration of their copyrights may be worth the upfront hassle if someone infringes their work down the road.  Indeed, registration can increase the potential damages at stake significantly, making it more likely that a possible infringer may be willing to offer a higher amount to resolve a dispute.
 
Moving Forward
 
Details aside, this case may prompt more awareness for tattoo artists and their clients that, especially if a tattoo is being inked on the body of a high-profile person, it may be worth thinking about copyright issues proactively, before giving or getting the tattoo.  As Artnet pointed out, “in a culture that is becoming increasingly integrated with digital media,” the case has ramifications far beyond video games, and raises copyright questions about how tattoos can and should be depicted in print, on video, and in the digital space.  Tattoo clients—especially celebrities—may begin seeking to clarify their rights with respect to a tattoo.  Artists might find it worthwhile to update their paperwork to include some agreement setting forth the artist’s understanding of who owns the copyright and who can reproduce the tattoo (as part of a depiction of its bearer or otherwise). 
 
At least one legal scholar has predicted that an appeal in this case seems likely, so we will continue to follow this and other cases—indeed, another one is already well underway—as they break new legal ground in this unique copyright context.