Jake Morgan Rothstein
Adorning the bodies of our favorite musician’s, actors, and athletes, tattoos have become a ubiquitous element of popular culture. However, in 2011, tattoo arts Victor Whitmill shocked the entertainment world when he filed a lawsuit against Warner Bros. for their use of Mike Tyson’s notorious face tattoo in their film Hangover II. In the movie, Ed Helms’ character wakes up after a night of debauchery with an identical copy of Tyson’s famous ink branded on his face. In response, Whitmill, the artist behind the tattoo, filed a suit in the Eastern District of Missouri seeking a preliminary injunction to prevent the film’s theatrical release, despite the studio already having spent $80 million promoting the film. Luckily for Warner Bros., Judge Perry decided the costs to the studio would be too high to allow the preliminary injunction. That being said, despite siding with them on this initial action, she indicated that Whitman would likely prevail in a subsequent copyright infringement suit, calling the studio’s fair use argument “silly.” Unfortunately, the parties ultimately settled the matter through mediation, leaving the question open whether tattoo artists can successfully sue for others using the art they have permanently inscribed on people’s bodies.
While worries that film studios are going to be sued every time a tattooed performer graces the Silver Screen are likely overblown, it has been established that tattoos themselves are copyrightable. Per the Copyright Act, any “original work” can qualify for protection as long as it is fixed in a “tangible medium of expression,” which in the case of tattoos, is just human skin. In fact, Whitmill was able to secure copyright registration for his tattoo the year he filed the suit. Similarly, artist James Hayden has secured six copyright registrations for works he has tattooed on basketball players Lebron James, Danny Green, and Tristan Thompson. Commentators have argued that tattooists’ give an implied nonexclusive license to their canvasses to independently display the designs on their bodies. A tattoo artist knows that the celebrity they are inking will be displaying the work for millions during a televised basketball game or concert and is almost assuredly implicitly consenting to this commercial use. In fact, in his suit, Whitmill himself, explicitly stated that Tyson had an implied license to appear in movies and display the famous ink.
However, the matter becomes more complicated regarding third-party commercial use. The current question courts are grappling with is whether developers who acquire athlete’s likenesses for realistic sports videogames can also recreate the tattoos on the characters. In Alexander v. Take-Two Interactive Software, Inc., a judge in the Southern District of Illinois denied a motion to dismiss a tattoo artist’s claim that the markers of the WWE 2K series infringed her copyright of 6 tattoos on wrester Randy Orton when they showed his likeness in the game. The judge found that the implicit license the artist gave to Randy to display the tattoos does not automatically create a sublicense for the wrestler to assign to videogame developers. Additionally, she found that Orton’s tattoos’ appearance in the game was not fair use as a matter of law simply because they were only a minor detail in the game. However, in Solid Oak Sketches v. 2K Games, Inc., a court in the Southern District of New York yielded the opposite result. In the case, artists sued 2K games for its unauthorized use of their work on the digital replicas of basketball players Lebron James, Kenyon Martin, and Eric Bledsoe in the NBA 2K videogame series. Here, the judge found that the implied license gave players free reign to assign their tattoos along with their images themselves to the videogame developer. She also found that depicting players’ tattoos in the games constituted fair use, and even if it didn’t, even though the games were highly realistic, the tattoo depictions were not substantially similar enough to their real-life counterparts to constitute infringement. No appellate courts have ruled on this issue, and the drastically different rulings at the District Court level leave it unclear whether tattoo artists are entitled to compensation for digital recreations of their work.
Given this lack of clarity, tattooists should consider creating basic contracts laying out the scope of the licenses given to their clients. With this in place, artists can guarantee a royalty when third parties try to use their designs without permission.
Mark Litwak, The Hangover II: Tyson Tattoo Copyright Infringement Suit, Entertainment Law Resources (2021). https://perma.cc/P2MY-T8GK.
 Hayden v. 2K Games, Inc., 375 F. Supp. 3d 823, 828 (N.D. Ohio 2019).
17 USCA § 102.
 Litwak, supra note 1.
Craig P. Bloom, Hangover Effect: May I See Your Tattoo, Please, 31 Cardozo Arts & Ent. L.J. 435, 467-470 (2013).
Id. at 469.
489 F. Supp. 3d 812 (S.D. Ill. 2020).
Id. at 828.
 449 F. Supp. 3d 333, 339 (S.D.N.Y. 2020).
Id. at 346.
Id. at 345-50.