A tattoo artist applies a tattoo to a customer who happens to be a prominent wrestler. The wrestler licenses his likeness for use in a video game. The video game depicts the wrestler, tattoos and all. Is there a copyright problem? If there is a copyright problem, is there a fair use solution?
Maybe. A slight variation from the aforesaid facts in a new case titled Alexander v. Take-Two Interactive Software, Inc., 18-cv-00966 (S.D. Ill. September 25, 2024) precludes a definitive answer, but the case is highly suggestive.
In Alexander, a video game maker created an avatar depicting the wrestler, including his tattoos. The defendants asserted that this was a fair use. But the defendants had gone further than just depicting the wrestler: The video game gave the user the ability, in creating the user's own wrestler avatar, to lift the tattoos from the wrestler avatar and apply them to the user's avatar. As a result, the court concluded:
The tattoos were included for their expressive value, rather than to merely display Orton's likeness accurately. This was evident with defendants' "Create-a-Superstar" feature, which enabled the user to take the tattoos and apply them to their own custom wrestler avatar. Thus, this usage had nothing to do with reproducing the tattoos in the video game to depict Orton most accurately.
The procedural posture of the case was a motion for judgment as a matter of law following a jury verdict in the tattoo artist's favor awarding damages of $3,750. Before trial, the defendants had moved unsuccessfully for summary judgment on their fair use defense. In its September 25 decision, granting in part and denying in part defendants' post-verdict motion, the court found that a reasonable jury could have found against defendants, as the jury did, on the fair use defense.
What would have happened if the defendants had contented themselves with using the tattoos only to identify the wrestler? Assuming the tattoos to be copyrighted, this clearly would have been infringing copying absent a defense.
Would that have been fair use? The video game use was clearly commercial, an important fair use factor weighing against defendants' fair use defense – non-commercial uses are more likely to be considered to be fair uses. The court found, on the other hand, that there was no proof that the tattoo artist's copyright monopoly had been invaded, meaning that the fourth fair use factor – the effect on the copyright owner's market – favored the defendants. With the mixture of considerations, the court upheld the jury's finding of no fair use. (Nevertheless, the court went on to conclude that there was inadequate proof of damages to support a jury verdict and entered judgment for the defendants on the issue of damages.)
If the video game maker's use was not fair use and was therefore a copyright infringement, what effect on the wrestler's right to exploit the value of his persona?
Since tattoos are copyrightable, without a written agreement conveying copyright to the customer, any copyright would remain with the tattoo artist. But it seems impossible that by patronizing a tattoo artist, a customer would thereby forfeit or at least constrain his or her right to exploit the commercial value of his or her likeness. In comparable cases, courts fashion an implied license for a customer who has paid for the creation of a copyrighted or copyrightable work but neglected to get an assignment or express license of the copyright. It seems that the tattoo customer and the tattoo artist would retain their respective rights, with the trouble being establishing the extent of the customer's implied license to display the tattoo when exercising the customer's right of publicity.
In summary, the Alexander case can be taken as an indication that tattoos are copyrightable and that the tattoo customer is not free to license every conceivable use of (at least that part of) his or her anatomy containing the tattoo or the tattoo itself, but it is also likely that the fair use defense or an implied license will enable the customer to exploit his or her persona including the tattoo.
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