Having Some Skin in the Game: The Copyright Challenges of Tattooing

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It seems that wherever I go these days, I inevitably run into tattoos, some very creative, some less so. They are on the arms, legs, necks (and no doubt other parts of the anatomy) of servers and cooks in restaurants, entertainers, hairdressers, university professors–butchers, bakers and candlestick makers. I don’t have any but that marks me as “Gen BT” (between tattoos). Before I came along, sailors and other hardy types liked to sport at least one discreet tattoo on their forearm, often something patriotic. Then having a tattoo kind of fell out of fashion as I was growing up, and tattoos became the domain of gang members and bikers. However, by the 1970s and 80s we were starting to see a resurgence of tattoo popularity and wider acceptance, beginning with Janis Joplin, Cher and others, and it’s only grown since.  Tattoos became art, a form of expressing one’s personality. No longer did you have to go to the midway to see the tattooed lady; she was probably serving your burger and fries! Having survived this long without inking my torso, I think I will continue to abstain, but I am probably bucking a trend.

According to the Pew Research Center, 32% of Americans have tattoos, 22% having more than one. But will this trend last? Some evidence suggests that we may be approaching “peak tattoo”, with tattoo artists complaining of a slowdown caused by rising costs and oversaturation of the market. Apparently ink and gloves have more than doubled in cost, and the demand has flattened. I guess there is just not enough virgin skin waiting to be inked to keep all artists happy.

However, economic conditions and fickle demand are not the only challenges facing tattoo artists. Some artists create their own designs but for others, keeping a client happy might mean pushing the creative limits a bit, especially where there is demand for designs or artwork belonging to others. Enter the copyright factor. First, for those artists who create their own artwork, these creations can be protected by copyright law just as any other creative artform, assuming they are original. Copyright law also requires the work to be “fixed” (perceivable) in a tangible form. This can be on canvas, paper, via the medium of photography, carved, sculpted, etc. (This raises the question of copyright protection for original ice sculptures and sandcastles, as I discussed in an earlier blog—“My Fixation with Fixation”–a few years ago).

Tattooing on human skin certainly qualifies as “fixation”, even though the medium on which the work is fixed belongs to someone else. Unless there is an agreement to the contrary, the tattoo artist holds the copyright to the design, just as an artist retains copyright over a painting they have sold. The purchaser owns the painting and the canvas but does not own the copyright to the work. (For example, the owner of the painting cannot make reproductions without the permission of the copyright holder). A similar parallel can be drawn to tattoo art. But it’s a bit more complicated than a painting because the “canvas”, i.e. the skin of the wearer of the tattoo, is part and parcel of the person wearing it. When that person, let’s say LeBron James, plays in front of thousands of people, he is on display, tattoos and all. So, what happens when a videogame company creates an online game starring an avatar of James which, for realism, features his tattoos? Although the videogame company, Take Two Interactive Software, had an agreement with James to use his likeness, the tattoo artist (Jimmy Hayden) who created the tattoos and inscribed them on the athlete’s shoulder claimed his rights were infringed. Let the copyright litigation begin.

In this case, which went to a jury to decide (in Canada, copyright cases are decided by judge alone in the Federal Court), the defendants, Take Two, were vindicated with the jury ruling the company had an implied licence to use the tattoo since it had obtained a licence to use James’ image through the NBA Players Association. The tattoo was an integral and indivisible part of James’ image. However there have been other US cases where the tattoo artist won. Take Two lost a case in 2022 when it had copied on to an avatar the tattoos featured on World Wide Entertainment (wrestling) star Randy Orton. The tattoo artist was awarded $3,750 in damages. (On appeal, the denial of the defendant’s fair use claim was upheld, but the damages were dismissed for lack of substantiation). These unpredictable and contradictory outcomes illustrate the capriciousness of jury rulings in copyright cases, an issue I will come back to later.

It appears there is no legal “right answer”, at least in the US, to the question of whether a person with a tattoo needs to obtain a licence from their tattoo artist when they market their own persona, although from a commonsense perspective, I think the outcome of the LeBron James case makes sense. James is famous because of his prowess as a basketball player, not because of his tattoos which are incidental to his monetary value. In the case of the creator of a painting, the value is in the artistry that has gone into the expression of the work, whereas in the case of a tattoo on an athlete, the tattoo artist has largely gone along for the ride. The James case is actually good news for tattoo artists too. If athletes fear limitations on the licensing of their image, this will chill the market for tattooing.

There is another well-known example of a dispute between a tattoo artist and a prominent, well-heeled company where a tattoo that was largely incidental to a wider story became the subject of potentially very expensive litigation. This was the case of Whitmill vs Warner Bros back in 2011. Whitmill had designed and inked a tattoo (based on a Māori design) back in 2003 on boxer Mike Tyson, over the boxer’s left eye. Fast forward to 2011 when the Warner Bros. film “Hangover II” was about to be released. Tyson had made a cameo appearance in “Hangover I” (tattoo and all) and in the sequel one of the actors, Ed Helms, wakes up in Bangkok after a night of partying with an identical tattoo over his eye. Whitmill sued for copyright infringement and sought an injunction to prevent release of the film (The Hangover: Part II). He had registered his copyright on the Tyson tattoo with the US Copyright Office (allowing him to bring legal action) just weeks before the film’s release, although technically he had owned the copyright since its creation eight years earlier. An injunction would cost Warner Bros in the tens of millions since it had already launched marketing for the film, and its release had been scheduled. In a mixed decision, the court denied the injunction stopping release but allowed the copyright claim to proceed. We will never know if Whitmill would have prevailed since Warners settled with him, presumably for a decent amount. The film was released on time without a digital alteration to the tattoo, which had been one of the suggested solutions.

An interesting side issue in this case is that Whitmill’s original tattoo over Tyson’s eye was inspired by (or based on?) a traditional Māori design, yet as discussed in this scholarly paper, the cultural appropriation and Indigenous rights aspects of the case were barely touched upon in the court proceedings. Even if they had, it is unlikely to have altered the outcome.

The most recent copyright tattoo case to come into the public eye is that of Sedlik v Kat von D. In this case Kat von D, a tattoo artist was sued by prominent photographer Jeff Sedlik in 2021 for having copied his famous 1989 photograph of jazz musician Miles Davis. The person on whom the tattoo was placed is not relevant to the case; the copying of the photograph is the issue. Sedlik had licensed this photograph for various types of reproductions on multiple occasions, so there is clearly a market for the work but Kat von D did not get a licence. In response to a friend’s request, she downloaded a copy of Sedlik’s work from the internet and used a “lightbox” to trace the design on the friend’s body. Sedlik alleged copyright infringement (reproduction, distribution, display, and derivative use) while von D argued that her use was transformative and non-commercial (she did not charge for inking the tattoo).

The judge denied summary judgement and sent the case to a jury for decision, as frequently happens in the US. In January of 2024, a jury determined that Kat von D did not infringe Sedlik’s copyright, a conclusion that is hard to fathom given the obvious close similarities between the photograph and the tattoo (and considering the technique that Kat von D used, literally tracing the photographic image), the fact that Sedlik has a proven licensing market for the image (which was ignored) and that Kat von D derived significant commercial benefit from the publicity she garnered for her work even though she didn’t charge for the actual tattoo. This is yet another example of the unpredictability, indeed irrationality, of jury findings in copyright cases. The case is now under appeal on the basis that the case should have been decided by a judge, not a “poorly-instructed jury”.

For sure this won’t be the last tattoo related copyright case we will hear about, whether it is about protecting tattoo based art or ensuring that artwork used in tattoo parlours is legitimately accessed. If I were to get Mickey or Bugs tattooed on my back, would that be a problem? Possibly, depending on who I was. All this to say that it helps to have a bit of skin in the game when it comes to walking the fine line between tattoo art and copyright.

© Hugh Stephens, 2025. All Rights Reserved.