It is well settled that tattoos are copyrightable. In this regard, an infringement case in which one tattoo artist copies another artist’s work would likely proceed in a similar manner to any other copyright infringement case. But what happens when copying occurs in a different medium?

Fair Use is often the name of the game in copyright cases involving tattoos, but it’s important to note that fair use is a fact-intensive doctrine that isn’t necessarily determined by the media at issue. Fair Use doctrine looks at four factors to determine whether an otherwise infringing use is protected from liability:

• Factor one: the purpose and character of the use, especially whether the use was commercial or transformative.
• Factor two: the nature of the copyrighted work.
• Factor three: the amount and substantiality of the portion used in relation to the copyrighted work as a whole.
• Factor four: the effect of the use upon the potential market for or value of the copyrighted work.

To answer the above question, we take a look at some recent (and pending) court decisions with respect to video games, television, and photography.

Photography

Sedlik v. Drachenberg (2023) is an ongoing case that involves celebrity tattoo artist Kat Von D and a portrait of Miles Davis. Von D, the Defendant, used the portrait as a reference in creating her tattoo design. The photographer of the portrait brought a copyright infringement claim against Von D in California federal district court.

In perhaps the first application of the recent Andy Warhol decision[1] to tattoos, the Sedlik court denied both parties’ motions for summary judgment, finding that triable issues of fact existed. Specifically, the court found that, previously the Defendant may have been able to argue that the nature and character of its use was transformative, but that the Defendant cannot do so following the Warhol decision. In other words, the Warhol court diminished the importance of whether a use is transformative, instead emphasizing the commerciality of a use in determining factor one of fair use analysis. Given that Von D provided the tattoo for free, the court found a triable issue of fact as to whether factor one weighs in favor of the Defendant.

Therefore, when it comes to tattoos and fair use, courts appear to be following the Warhol court by focusing more on the “commerciality” of the use rather than whether or not the use is “transformative.”

For more insight on the Warhol case, read our Client Alert.

Television

Cramer v. Netflix (2023) involved a curious set of facts. Plaintiff Cramer tattooed a depiction of Joe Exotic, rocketed to fame by Netflix’s Tiger King docuseries, on her husband in a bid to promote her tattoo business. Cramer then published a photo of the tattoo on the internet, which Netflix used in the series’ next season. A minute into the first episode of Season Two of the show, Netflix showed a picture of the tattoo as part of an eight-image montage for about two seconds to show the bizarrely viral impact that the first season had on the public.

The Plaintiff brought a copyright infringement suit against Netflix for depicting her tattoo design. Netflix subsequently pled fair use. The Pennsylvania court found that Netflix’s use was fair use and thus dismissed Plaintiff’s complaint with prejudice. As in most cases, the first and fourth fair use factors were most significant:

• First, Netflix’s use was transformative because its purpose in using the picture was completely different from Cramer’s intent to promote her business.
• Second, Netflix operates in a completely different market from that of a tattoo artist and, as a result, does not significantly affect the market for Plaintiff’s work.

Therefore, the court found fair use.

This is a good illustration of fair use analysis prior to Warhol. Given that the Warhol court emphasized the importance of the commerciality of a work rather than the transformative nature (as done in Netflix), it is interesting to think about whether this decision may have turned out differently post-Warhol.

Video games

Take-Two Interactive found themselves at the heart of three similar cases: Hayden v. 2K Games, Inc.; Solid Oak Sketches, LLC v. 2k Games, Inc.; and Alexander v. Take-Two Interactive Software, Inc. At issue in each of these cases was the Defendant’s depiction of the Plaintiff’s tattoo designs in a video game as they appear on an NBA player’s body:

• In Hayden (2022), the Ohio court denied Plaintiff artist’s summary judgment insofar as Defendant Take-Two’s virtual reproductions of NBA players including their tattoos are an infringement of the artist’s valid copyrights in his designs. The court instead found that the Defendant’s de minimis, fair use, and implied license defenses presented genuine issues of fact appropriate for a jury to consider.
• In Solid Oak (2020), the New York court took the opposite approach by agreeing with the Defendants on all three of the above defenses (the Defendants pled the same three defenses in all three cases). In other words, the court found unequivocally in favor of the Defendants as a matter of law.
• In Alexander (2020), the Illinois court followed in the Hayden court’s footsteps by finding that Take-Two’s implied license and fair use defenses involved fact issues that must be resolved by a jury. Notably, the Alexander court denied the Defendant’s de minimis defense.

Based on these opinions, it is unclear (outside of the state of New York) to what extent copyright protection exists for tattoo copyrights insofar as they are used in virtual depictions of the person on whom the tattoos were inscribed.

Moreover, these Take-Two Interactive cases show that fair use is not the only defense available to claims of copyright infringement; de minimis and implied license defenses can be viable defense strategies.

Stay tuned here for an update if the Hayden and Alexander cases reach a judgment!

[1] Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S, 508 (2023)