One of the the bedrock things that makes having a tattoo fun is being able to show it off when you want to. And while you may get mocked for your image placement and content:
Royal throat
Infinity throat
Energised throat
Unique throat
????
Limitless throat
Blessed throat
Throat goat
The incredible throat https://t.co/wr7BJFjOeV— C (@lherealchieff) April 30, 2024
You are generally free to show off your new ink whenever you want — the tattoo is yours after all! However, things get sticky when you think about tattoos from the artist’s vantage point. Sure the tattoo is on your body, but don’t they have some IP rights in it as the artist? Jimmy Hayden thought so, and while he lost his copyright case, there’s still some colorable ambiguity about how future cases will pan out. From Bloomberg:
After six years of litigation, an Ohio federal jury took just 90 minutes to find Take-Two Interactive Software Inc. and 2K Games Inc.’s blockbuster “NBA 2K” series didn’t infringe tattoo artist Jimmy Hayden’s rights in the work he’d inked on [LeBron James]. The verdict marked the third time since 2020 a judge or jury declined to endorse a tattooist’s claimed cut of a 2K video game’s profits when a real-life person depicted in the game flashed their designs.
Illinois tattoo artist Catherine Alexander fared better in 2022 when a jury found “WWE 2K” infringed her copyrights in tattoos on pro wrestler Randy Orton. But even in that case, the jury awarded Alexander just $3,750, a fraction of what she sought.
Its not clear what tattoo artists looking for an unexpected windfall hell bent on protecting their copyright should do to prevent situations like this in the future. Treat the rendering and proliferation of their art as free publicity and call it even? Hit their clients with stronger contactual language requiring them to consult the artist before each picture, video or recording of their likeness? No way that option would do well for their bottom line.
Artists may be able to lobby together and put pressure on the ability of gaming companies to render player’s tattoos without consulting artists, but that would be a very hard hill to climb. Trust, there would be a lot of complaints if EA or 2K were forced to switch over from hyper-realistic renditions of basketball players to Mii Avatars dunking:
Cases like these probably won’t make their way to the Supreme Court, but it would be interesting to see how the decision meshes with the Andy Warhol Foundation v. Goldsmith holding. Maybe we’d get another Kagan diss track out of it.
LeBron Tattoo Rights Ruling Reflects Artists’ Copyright Struggle [Bloomberg Law]
Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s. He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at [email protected] and by tweet at @WritesForRent.