Who owns your tattoo?
Elaine Maguire O’Connor
When you get a tattoo, the last thing you think about is who owns it. It’s your skin, you’re paying for a service, so you own it and can do what you like with it. However, a recent spate of lawsuits has raised a myriad of legal and ethical questions about tattoo ownership, leaving both artists and clients unsure about what they can and can’t do with the piece of art.
Historically, the tattoo industry operated outside the bounds of the law, not subject to the same laws and regulations as other art forms, but relying on social norms that developed over time. As tattoos became more mainstream, interest in associated copyright issues increased, especially when tattoos were used in advertising and other media and the original artists were not paid.
Jimmy Hayden says that when he first discovered the video game NBA2K, he was surprised to see his artwork featured prominently, mainly because no one had consulted him about its use in the video game. A few years ago, Hayden inked basketball superstar LeBron James with his distinctive lion’s head chest tattoo, as well as tattoos on his legs, back, and arms. James was featured in the NBA-themed video game with permission. When Take-Two Interactive, the company behind the NBA2K game, refused to pay Hayden a license fee, Hayden sued, claiming that the reproduction of James’ tattoos constituted copyright infringement. Though not a focal point of the game, the tattoos were meticulously recreated, with the same intricate detailing as those designed by Hayden.
“If Haden were a musician or a graphic artist in another medium, the video game creators would have had a legal obligation to get his permission and a license to use his work. He spent hours creating the design and attaching it to James’ body, and while he knew James would be photographed playing basketball and might appear in NBA promotional materials, he never expected the tattoo to be replicated in a video game.”
That’s something Hayden hadn’t had in mind at all when many of the works were created in 2007: the technology to recreate such accurate reproductions just didn’t exist.It’s a valid argument, but while artworks are generally protected by copyright law, things get a little more complicated when the artwork in question is pinned on another human being.
Typically, copyright owners have the power to control artwork, including the ability to enlarge or destroy it. When this power extends to tattoos, it clearly raises serious human rights issues. It is unlikely that a judge would force a client to undergo laser treatment or deny the client the right to remove or enlarge the tattoo if the original artist or copyright owner wants it destroyed. It is generally understood that even though the artist owns the copyright, there is an implicit license for the client to display the tattoo without the artist’s prior permission.
Popular New York-based tattoo artist Samantha Robles, known as Cake, said many of her clients are celebrities who have asked her to sign release forms making it clear they won’t sue if their work is used in movies or music videos. Cake explained that she happily signs them and wouldn’t object to her work being featured in other media.
But this may change if an artist finds their work the focus of a commercial endeavor, as happened when S. Victor Whitmill’s design was used as a major plot point in The Hangover Part II. Whitmill, the artist behind Mike Tyson’s distinctive tribal facial design, sued Warner Bros. for creating art that resembled the face of Ed Helms’ character in the film, seeking an injunction to stop the film from being released. Warner Bros. settled out of court because they didn’t want to risk losing box office revenue while the courts debated the copyright status of tattoos. Like Cake, other artists are generally sympathetic to utilizing copyright law in cases involving unauthorized use of designs by large corporations profiting from the work of independent artists.
This was the crux of Hayden’s lawsuit. Take-Two Interactive reportedly makes billions of dollars in revenue, but Hayden received nothing, even though his work appears prominently in one of the company’s best-selling games. Hayden explained that other big companies, including Nike, had previously sought out and paid Hayden to recreate tattoo designs he had made, including for limited-edition sneakers, the Nike Air Max LeBron 7. But Take-Two never sought a license or worked with Hayden to recreate the work for NBA2K. In April, an Ohio jury ruled in Take-Two’s favor. Take-Two argued that the tattoos were used solely to recreate LeBron James’ likeness, which constituted fair use.
Katherine Alexander, the artist behind WWE wrestler Randy Orton’s tattoos, took a similar position to Hayden when she sued Take-Two for unauthorized reproduction of Orton’s tattoos in the WWE 2K video game. Unlike Hayden, a jury found in Alexander’s case. The jury found in her favor, finding that she had not given Orton implied permission to reproduce her work, nor a right to secondary permission to reproduce her tattoos, and awarded her damages.
The differing outcomes of the Hayden and Alexander cases have created uncertainty, and it seems likely that formal contracts and releases detailing who has the right to control reproductions of tattoos in commercial settings will become the norm. Most tattoo studios already require customers to sign releases regarding health and safety risks, so it is not far-fetched to expect copyright clauses to become the norm before an artist agrees to inked a customer. Litigation is costly and time-consuming, so resolving these issues up front may be the best approach, but it remains to be seen how inconsistent with traditional industry practice this will be.
The copyright lawsuits that are creeping into the tattoo industry, threatening to supplant cultural norms that have long dominated the industry, aren’t just about companies copying artists’ work without permission. In 2021, photographer Jeff Cedric filed a lawsuit against Kat Von D after his portrait of Miles Davis was used as the basis for a tattoo on a friend’s arm. The case could have caused upheaval in the tattoo industry, where it’s standard practice for artists to use photographic references without first seeking permission or a license.
Cedric argued that he was the copyright owner and that Von D had not obtained a license. The court ruled in Von D’s favor, finding that Von D had changed the appearance of the image from the original work, particularly the shading and shape, so that it had a different meaning from the original work. A sigh of relief reverberated throughout the tattoo studio upon hearing the verdict, but the lawsuit did not offer much clarity as to what problems tattoo artists may face in tattooing photographs in the future. After the verdict, Von D said he was so broken by the ordeal that he may never tattoo again, highlighting the emotional toll litigation takes on those involved.
One thing is for sure: unless copyright provisions are included in the release forms, the litigation will continue. Tattoos may not be subject to the same broad scope of copyright law as other creative media, but we can only hope that future court decisions will take into account the conflicts of interest of both artists and clients.
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