Intellectual Property

Tatt's Enough! Court Orders Body Art Case To Trial

Tattoo art should enjoy the same protections as any other graphic work -- including copyright protections.

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You paint it on a canvas — that’s art. You draw it on a tablet — that’s art. You ink it on a body? I am fairly certain that is also art.

That was just about confirmed, and many other salient issues were addressed, in a fascinating recent decision out of the Second Circuit. It issued in the long-running battle between Solid Oak Sketches, LLC and big-time video game publisher, Take-Two Interactive software.

Solid Oak owns the copyrights in certain tattoo art that had been fixed in and on the skin of high-profile National Basketball Association players like Lebron James. Take-Two had released a basketball video game in which you could play as James and others. Take-Two incorporated the tattoo art into the game, taking the necessary steps to pixel it onto James’s and other players’ beings, but did not reach out to Solid Oak for consent to use the artwork.

Take-Two wouldn’t settle, so Solid Oak sued for infringement. Take-Two denied the claims, arguing it had the right to exploit the tattoo artists’ work without consent or permission because its use was de minimis and protected by the fair use doctrine. It also took the classy approach of denigrating in its papers the copyright holder as an “opportunist” for asserting its rights.

U.S. District Court Judge Laura Taylor Swain recently rejected both of Take-Two’s arguments at the FRCP 12(b)(6) stage. She noted that the de minimis defense can only be applied with success by defendants whose use is “so trivial” as to be of no consequence. Take-Two had admitted that it had copied the entirety of each of the tattoo works in question, so the argument was already a bit wobbly. To compensate, Take-Two argued that its use of the tattoos was insignificant because they were often obscured by graphics or otherwise only fleetingly depicted on-screen.

Solid Oak disputed this contention, and the court agreed, noting that, unlike in a film, the use of artwork in a video game can be viewed in a number of different ways and the manner and length of display is impacted by the player’s choices. Certain choices will result in the tattoo artwork being displayed prominently, of course. If you want to sit for an hour and stare directly at James’s video game tattoo work, you can go right on ahead and do so. She denied the motion in regard to this defense, holding that a reasonable juror could find Take-Two’s use of the artwork to be sufficient to find infringement.

Judge Swain then turned her attention to the fair use argument, an argument over which much ink has been spilled in just the past couple of months. She noted that this argument is not well-suited for a 12(b)(6) challenge, and, citing many of the reasons set forth in her rejection of the de minimis challenge, shunted this one aside as well, though she did so without prejudice to it again being raised at a later date.

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The case will now get a trial date and the parties will get a chance to explore their respective positions in discovery. And, if lucky, we will get further clarification of certain aspects of copyright law as it applies to body art. This would be helpful given the current mainstream and commercial appeal of tattoo art.

Body art was not always such a respected genre. Like street art, it was once consigned to the domain of inferior works, not worthy of much critical or commercial regard or respect. And the law did not acknowledge or care much for the art form either. Indeed, no less an authority than Professor David Nimmer once submitted a declaration (in the infamous Mike Tyson face-art case, which addressed use of a copy of said face-art on Ed Helms’s face in the totally unnecessary Hangover 2) attesting to the fact that, in his opinion, art as applied to the body should not garner protection under the Copyright Act. He has since modified that position, and most other authorities on such matters now tend to agree that body art should be covered by copyright protection. Indeed, the judge in the Tyson face-art case opined from the bench, “Of course tattoos can be copyrighted. I don’t think there is any reasonable dispute about that.”

This position is sensible, in that it would make no sense to deny protection to one who inks a a gorgeous image of the Rhode Island seashore on the back of a human while another that inked the same image on a piece of butcher paper would gain protection. Why should a tattoo artist be precluded from stopping others from selling posters or sweatshirts bearing their artwork just because they use flesh as a canvas?

And this approach finds support in the text of the Copyright Act. Section 17 USC 102 to be exact, which states that protection attaches to “original works of authorship fixed in any tangible medium of expression[.]” The use of “any” indicates that the sweep of tangible media is broad, and, some would argue, there are few media more tangible than that of human flesh.

It also finds support under recent Supreme Court precedent. In Star Athletica, L.L.C. v. Varsity Brands, Inc., which addressed the scope of protection for visual art, the court found that a work is eligible for copyright protection if it can be perceived as a two-dimensional work of art separate from the useful article and that art would qualify as a graphic artwork on its own or in a medium other than the useful article. For body art, the useful article is the human body, and many of today’s more complex and ornate tattoos can certainly be perceived apart from the human body and would qualify as a protectable graphic work in such a case. As it stands, tattoo art should enjoy the same protections as any other graphic work. And, given the state of the law, the phrase “tattoo art” now qualifies as a tatt-ology.

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Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.

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