The Inky Ambiguity of Tattoo Copyrights: Addressing the Silence of U.S. Copyright Law on Tattooed Works

• Author: Arianna D. Chronis
• Position: J.D. Candidate, The University of Iowa College of Law, 2019; B.A., English, The University of Iowa College of Liberal Arts and Sciences, 2016
• Pages: 1483-1521

1483

The Inky Ambiguity of Tattoo Copyrights:

Addressing the Silence of U.S. Copyright

Law on Tattooed Works

Arianna D. Chronis*

I. INTRODUCTION ........................................................................... 1484

II.COPYRIGHT LAW, TATTOOS, AND CELEBRITY PORTRAYAL

IN VARIOUS MEDIA ...................................................................... 1486

A.BACKGROUND ON GENERAL COPYRIGHT LAW ......................... 1486

B.THE COPYRIGHTABILITY OF TATTOOS .................................... 1494

C.SPARK OF LITIGATION SURROUNDING DEPICTIONS

OF TATTOOED CELEBRITIES.................................................... 1497

D.SOLID OAK SKETCHES, LLC V. 2K GAMES, INC. .................. 1499

III.ISSUES ARISING FROM CONTINUED AMBIGUITY,

DIFFICULTY FITTING TATTOOS WITHIN EXISTING

LAW, AND COMPETING INTERESTS .............................................. 1506

A.DIFFICULTIES CREATED BY AMBIGUITY AND THE

STRUGGLE TO FIT TATTOOS WITHIN EXISTING

COPYRIGHT STATUTES ........................................................... 1506

B.BALANCING THE INTERESTS OF THE TATTOO ARTIST,

THE ENTERTAINMENT COMPANIES, AND THE TATTOOED

HUMAN IN DETERMINING WHO TATTOO COPYRIGHT

LAW SHOULD FAVOR ............................................................. 1507

1.The Creator: Tattoo Artists ......................................... 1507

2.The Canvas: Inked Celebrity Athletes,

Musicians, and Actors ................................................. 1509

3.The Industry: Entertainment Companies ................. 1512

IV.A PROPOSED SOLUTION TO CLEARY ESTABLISH TATTOOS

WITHIN COPYRIGHT LAW ............................................................ 1513

A.A DEFINITIVE COURT RULING THAT TATTOOS ARE

COPYRIGHTABLE ................................................................... 1514

*

J.D. Candidate, The University of Iowa College of Law, 2019; B.A., English, The

University of Iowa College of Liberal Arts and Sciences, 2016.

1484 IOWA LAW REVIEW [Vol. 104:1483

B.PROPOSED STATUTORY ADDITIONS TO INCLUDE

TATTOOS IN EXISTING COPYRIGHT LAW FRAMEWORK ............. 1514

C.AN ALTERNATIVE, UNWORKABLE SOLUTION:

FITTING TATTOOS WITHIN THE “WORKS MADE FOR

HIRE” DOCTRINE .................................................................. 1517

V.CONCLUSION .............................................................................. 1520

I. INTRODUCTION

Although the law of copyrights is a well-established and codified field,

there are a handful of innovative sub-categories that remain ambiguous and

unaddressed by courts in the United States. Due to an ever-changing, rapidly

evolving society, new areas grow and become prevalent enough to create

unforeseen issues as the law struggles to catch up. One incredibly topical

example, and the focus of this Note, is the application of copyright law to

tattoos, specifically in the context of their depiction on celebrities in various

forms of media.1

Professor Yolanda M. King2 briefly describes the societal pattern and

impact of the growth and change in attitude toward tattoos:

At one time, tattoo artists and individuals with tattoos were

associated with criminals, men in the military, or risqué

underground social classes. Today, a young generation enjoys the

acquisition of symbolic body art. The demand for tattoo art has

transformed the nature of consumerism in this industry, and is

therefore changing the perception of the industry and the appeal of

its artwork in the eyes of the media and other businesses.3

1. The entertainment outlet that this Note focuses primarily on and provides a major case

example of is video games. However, the Note also frequently addresses film in its discussions of

tattoo copyright issues.

2. Professor Yolanda M. King is currently an Associate Professor of Law at the Northern

Illinois University (“NIU”) College of Law where she teaches entertainment law and other

intellectual property law-related courses. Yolanda M. King, N. ILL. U. C. L., https://www.niu.edu/

law/about/directory/king.shtml (last visited Dec. 13, 2018). She is considered an experienced

and knowledgeable authority on tattoo copyrights, having practiced as an intellectual property

attorney, published several pieces on the law of tattoo copyrights, and delivered presentations on

the subject as well, a list of which is available on her biography page of the NIU College of Law’s

online Faculty & Staff Directory. Id.; see also N. Ill. Univ. Coll. of Law, From the Community: NIU Law

Professor Yolanda M. King Takes Copyright Law “Outside the Box,” CHI. TRIB. (Sept. 11, 2015, 2:40 AM),

http://www.chicagotribune.com/suburbs/naperville-sun/community/chi-ugc-article-niu-law-

professor-yolanda-m-king-takes-copyr-2015-09-11-story.html (highlighting King’s background,

scholarship, and current involvement in intellectual property and entertainment law).

3. Yolanda M. King, The Challenges “Facing” Copyright Protection for Tattoos, 92 OR. L. REV. 129,

160 (2013) [hereinafter King, The Challenges].

2019] U.S. COPYRIGHT LAW ON TATTOOED WORKS 1485

In the mere five years since King’s article, tattoos have become even more

common, and their continuous widespread growth has brought attention to

the relevant legal implications. This Note focuses solely on the issues that arise

when tattooed celebrities are depicted in various media such as video games

or movies.4 The notoriety and high-profile nature of famous athletes,

musicians, and actors creates a host of problems unique to their industries. As

a result, this Note will not address the concerns of the tattooed average

person.

The increase of tattooed celebrity athletes is particularly problematic

when those athletes are prominently featured in video games, an industry that

is systematically improving its graphics so the depiction of real-life figures

becomes increasingly realistic. The recent spark of tattoo-related copyright

infringement litigation highlights the issues that arise from reproductions of

tattoos of inked public figures in various media forms, yet this area of the law

remains devoid of any published court rulings. The few cases that have been

brought either settle or are dismissed, resulting in the courts’ continued

silence on issues surrounding copyrighting tattoos.

This Note laments the lack of court rulings on tattoo-related copyright

lawsuits, expresses concern over the continued ambiguity of the law in this

area, and proposes a solution for creating a more structured, standardized

approach to tattoo copyrights. Part II provides a brief introduction to the

relevant, general concepts of the law of copyrights, moves into a discussion of

the copyrightability of tattoos, and finishes with an examination of some

tattoo-related lawsuits, including an in-depth discussion of the most recent

and viable tattoo copyright case. In doing so, this section hopes to highlight

the common issues and elements that arise in tattoo copyrights. Part III

identifies the problems associated with unclear copyright laws for tattoos.

Next, Part IV proposes a number of statutory additions for Congress to adopt

and fit within the current copyright framework that explicitly address tattoos.

Finally, Part V concludes.

4. To be more precise, this Note focuses solely on copyright issues. However, there are

recent issues gaining media attention that concern tattooed celebrities (specifically, athletes) and

other areas of intellectual property law, such as trademarks. See, e.g., Jacob Bogage, J.R. Smith

Expects to be Fined by the NBA for His New ‘Supreme’ Tattoo, WASH. POST (Sept. 29, 2018),

https://www.washingtonpost.com/sports/2018/09/29/jr-smith-expects-be-fined-by-nba-his-new-

supreme-tattoo; Tyler Lauletta, Lonzo Ball Forced to Cover Up Tattoo Due to NBA Rules, BUS. INSIDER

(Oct. 12, 2018, 5:47 PM), https://www.businessinsider.com/lonzo-ball-bbb-tattoo-cover-up-2018-10;

Michael McCann, Could the NBA Force J.R. Smith to Cover Up His Supreme Tattoo?, SPORTS

ILLUSTRATED (Sept. 30, 2018), https://www.si.com/nba/2018/09/30/jr-smith-supreme-tattoo-

nba-rules; Nadra Nittle, NBA Players Keep Getting Tattoos of Corporate Logos. Now the League is Forcing

Them to Cover Up, VOX (Oct. 18, 2018, 5:10 PM), https://www.vox.com/the-goods/2018/10/

18/17996526/nba-tattoos-jr-smith-supreme-corporate-logos; Carron J. Phillips, Phillips: The NBA’s

Rule on Tattoo Logos Will Always Get Under My Skin, DAILY NEWS (Oct. 19, 2018, 7:00 AM),

http://www.nydailynews.com/sports/basketball/ny-sports-phillips-nba-tattoo-20181018-story.html.