Tattoo You

‘Where there’s a hit, there’s a writ’ is an old music business saying, which perhaps applies to legal responses in recent times to the rise in popularity of body art, tattooing in particular. In March 2020 landmark court rulings were given in a lawsuit about copyright in body tattoos. For the past decade or so increasing numbers of tattoo artists have become seriously interested in whether they own copyright in their original designs and, if so, whether they are entitled to be paid for unauthorised exploitation of their designs in commercial ventures such as feature films, video games and other merchandise.

Lawsuits by artists against commercial entities for allegedly ab/using their artwork are rarely brought, invariably because the vast majority of artists are unable to afford to pay the potentially high costs of hiring lawyers for advice and help in what is a complex area of art law and business.

The US is arguably the most litigious country worldwide, partly because of its Federal and State legal systems that allow lawyers to operate no-win/no-fee billing (contingent fee) arrangements with clients in non-criminal cases. Additionally, the

US legal profession has a longstanding tradition of providing pro bono legal support to those in need. The American Bar Association’s (ABA) Model Rules for practising attorneys go so far as to say that: ‘Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least 50 hours of pro bono public legal services per year.’

And it does happen. Many US State Bar Associations have adopted the ABA’s approach into rules for their licensed attorneys, and most law firms have their own internal policies requiring their attorneys to perform an annual quota of pro bono hours of client service. A recent ABA survey reported that ‘around 73% of attorneys in the US do pro bono work … on average, the number of hours devoted to pro bono work per year per attorney was 56.5 hours … both the proportion of attorneys doing pro bono work and the average number of hours spent on pro bono work appears to be increasing … law students may engage in pro bono work under certain conditions.’

It is in this US legal context that artists have for decades felt able to approach lawyers to advise and help assert their rights in works that have been used and abused for commercial gain without

their authorisation. Many such lawsuits have succeeded in developing landmark decisions from US courts; including, for example, arguably the most influential judicial decision worldwide of the past century, on the question ‘what is art in law?’: Brâncuşi vs United States. In 1928 a full trial was held to decide whether a polished bronze cast of Brâncuşi’s Bird in Space, 1923, was in law a work of art (and therefore entitled under Federal law to customs duty-free entry into the US from France), or in law dutiable as ‘merely a manufacture of metal’ and an ‘article of utility’ as claimed by the US Customs Service. Brâncusi’s art lawyers argued and the court accepted as follows:

‘There has been developing a so-called new school of art, whose exponents attempt to portray abstract ideas rather than to imitate natural objects. Whether or not we are in sympathy with these newer ideas and the schools which represent them, we think the fact of their existence and their influence upon the art world as recognized by the courts must be considered … and as we hold under the evidence that it is the original production of a professional sculptor and is in fact a piece of sculpture and a work of art according to the authorities above referred to, we sustain the protest and find that it is entitled to free entry.’

Perhaps in the spirit and tradition of Brâncuşi and his art lawyers, this latest lawsuit asserting artists’ rights was brought in the Federal court for the Southern District of New York. The plaintiff/claimant was Solid Oak Sketches LLC, a tattoo studio whose artists were hired to ink tattoos, in this case on the arms of three star players of National Basketball Association (NBA) teams. The defendant was Take-Two Interactive Software Inc, a major developer, publisher and marketer of interactive entertainment. Take-Two annually released an updated video game, NBA2K, which simulated basketball played by realistically depicted NBA teams that included lifelike depictions of NBA players and their tattoos. Solid Oak claimed that NBA2K infringed its copyrights by publicly displaying – without prior authorisation – five tattoos its artists had inked on the arms of three star players whose likenesses were depicted.

In lawsuits alleging copyright infringement, a first key step is for claimants to establish that the artwork in question was a copyright-protected work at the time of its use by the defendant. To do so to the satisfaction of the court, claimants must show that the artwork in question is executed in a form/medium that is legally recognised. Copyright laws of most countries classify creative

works of all kinds into different categories (literature, music, drama, dance and so on), including what in the UK are called artistic works – effectively still visual artworks (not moving images that are separately classified as being film/video). Artistic works are then further classified into three sub-categories of medium:

a. graphic works, photographs, sculptures or collages, irrespective of artistic quality;

b. works of architecture being a building or models for a building;

c. works of artistic craft: essentially 3D art objects (other than sculptures) not designed to be mass-produced.

Tattoo artwork is likely to be legally recognised as being a graphic work, which in UK law is defined as including ‘any painting, drawing, diagram, map, chart or plan, engraving, etching, lithograph, woodcut or similar work’. Note that the law takes no account of ‘artistic quality’; legal categorisation is determined by the form/medium of the work, not whether its content is artistically good or bad or indifferent.

Having established that a tattoo artwork is legally an artistic work, there are two further legal requirements the work must satisfy to achieve copyright protection:

a. that it is executed in a fixed form: meaning that its contents are manifest and observable through the medium of the eye (unexecuted ideas or concepts would be excluded);

b. that it is original: meaning that its shape, form, configuration, composition, lines, colours, perspectives (and so on) are the expression of the artist’s own intellectual creation (and not laboriously copied from an earlier work of another artist).

All in all, a work should be copyright-protected if it is executed in a fixed medium that falls into one of the three classes of artistic works and is an original expression of the artist’s mind (and not an expression of another artist’s mind). In the NBA2K case, the trial court accepted that the five tattoos in issue were copyright-protected works.

A further key step for claimants is to establish to the satisfaction of the court that, at the time of any alleged infringement, they were the copyright owner of the artistic work. UK law is in line with most countries worldwide in automatically giving to authors of original artistic works first copyright ownership, unless the authors were employees hired to create the art (in which case employers become copyright owners of their employees’ artwork) or where the authors signed a contract giving

their copyright ownership to someone else. In the NBA2K case, the trial court accepted that Take-Two did not own the copyright in the five tattoos (because Solid Oak and its tattoo artists in effect owned the copyrights).

Another question for claimants to address to the satisfaction of the court is whether their copyright-protected tattoos have been infringed by the defendant’s unauthorised use of them. This question has two distinct issues. First, whether the whole or substantial elements of their copyright-protected tattoos have been relied upon by the defendant as substantial sources for their own creations; in other words, in the NBA2K case the question is whether the shape, form, configuration, composition, lines, colours, perspectives (and so on) of the tattoos were substantially relied upon to create NBA2K’s lifelike depictions of the NBA star players. Second, if NBA2K’s lifelike depictions do rely on those tattooed images in those ways, whether they have done so without the copyright owner’s prior permission.

In most countries, including the UK, copyright law requires the user of another copyright owner’s work to satisfy the court that they have been authorised by the copyright owner to do so. In this way copyright law puts the legal burden on the alleged

infringer/defendant to prove they had prior permission for their use. Such authorisation of use of copyright-protected works by another may be given by a copyright owner in several ways. An exclusive licence to use copyright-protected artwork usually defines a limited period of time (and perhaps numbers of reproductions) and is invariably required by copyright law to be made in writing signed by the copyright owner (who effectively foregoes even their own use during the exclusivity period). A non-exclusive licence is a different matter – it is a simple permission to use – and in many countries, including the UK and US, may be given verbally or by implication (though ideally should always be given in writing to avoid any legal doubt).

In NBA2K’s case the landmark element of the court’s decision was that ‘the plaintiff’s copyright infringement claim must fail because they were authorised to use the tattoos in NBA2K’. The court accepted Take-Two’s assertion that ‘they had an implied license to feature the tattoos as part of the players’ likenesses’. The court was referring to the fact that the NBA star players had given their permission for Take-Two to use their likenesses – including their tattoos. The court’s reasoning was that a non-exclusive licence exists ‘where one party created a work at the other’s

request and handed it over, intending that the other copy and distribute it’. The court went on to explain that ‘the tattooists intended the players to copy and distribute the tattoos as elements of their likenesses, each knowing that the players were likely to appear in public, on television, in commercials, or in other forms of media’.

This notable court decision confirms that tattoos can engender legal protection as artistic works, and raises important issues of good creative and business practice for tattoo artists: ideally, they should discuss and sign a written agreement before tattooing any (but especially celebrity) clients, thereby agreeing whether the copyright owner of the tattoos will be the artist, the client, or both jointly.

© Henry Lydiate 2020

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This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.