Cynthia Zhang is a 3L JD Candidate at Osgoode Hall Law School.

Recently in , a jury of the US District Court of the Southern District of Illinois that tattoo artist Catherine Alexander has a valid copyright claim in the designs she tattooed on World Wrestling Entertainment Inc. megastar Randy Orton. Orton’s likeness was licensed through defendant WWE to defendant Take-Two Interactive Software, a video game publisher. Since 2005, Take-Two has owned the that produces the popular WWE 2K series of pro wrestling sports simulation video games. Interestingly, the jury only awarded plaintiff Alexander $3750 USD in damages. This is a far cry from the revenues earned on the WWE 2K games, which have sold . This development has led legal commentators to observe that, unfortunately, the copyright law surrounding celebrity tattoos .

Copyright protection over tattoos has been a hot topic for some time. IPilogue writers have previously discussed the Kat Von D and the NBA 2K , the latter having also featured Take-Two as defendant. Some tattoo artists may see copyright protection and the ability to raise an infringement claim as a just outcome or a validation of their art. However, numerous considerations give pause for thought when it comes to copyright and tattoos.

An oft-deliberated concern is that the medium of tattoos is a human body. This discussion raises questions of personal agency and asks how an artist can have ownership over their client’s body, even though it’s how their work is physically fixed. Another important factor that’s less often discussed is how increasing copyright protection will affect the tattoo industry itself. Tattoo artists currently benefit greatly from lax copyright enforcement – popular subject matter for tattoos includes famous artworks, celebrity portraits, and quotes from books and movies. As seen in the Kat Von D case, treating tattoos identically to other artworks can open the door for claims in the opposite direction as well. Furthermore, many popular tattoo designs are very similar to one another and can be virtually indistinguishable from one artist’s execution to the next. Take Orton’s tattoos that were the subject of debate in the Alexander case, for example. They were as “tribal tattoos, skulls, a bible verse, and a dove and rose”. All these elements have been common building blocks of tattooing since the early days of the industry. Their combined application on Orton’s body may be technically unique but is certainly not groundbreaking. Indeed, copyright vests in any original work – but are these common types of tattoos original enough?

If copyright protection of tattoos becomes more rigorous, celebrities will likely circumvent the issue by always demanding a contractual assignment of rights before getting tattooed. The tattoo process could follow the model of other commissioned work, such as logo design. For now, the law is still hazy. Alexander has shown that even a successful claim of infringement in such cases may not be worth the effort for a tattoo artist.

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Govind Kumar Chaturvedi is an IPilogue Writer and an LLM graduate from Osgoode Hall Law School.

On 30 September 2022, the much-awaited for Alexander v Take Two Interactive Software Inc. & Ors. was released. In the the jury stated that Defendants had not proven fair use, the Plaintiff (Alexander) should receive $3,750 USD for actual losses from the Defendant’s use of the tattoo designs, and did not answer as to profits can be attributed to the Plaintiff for use of the tattoos.

Alexander inked WWE professional wrestler Randy Orton with a total of including tribal tattoos designed by another tattoo artist which Alexander extended per Randy Orton’s request. Take-Two created the WWE 2k video game series, which use to realistically reproduce the featured wrestlers from a photograph. Take-Two Randy Orton’s likeness from WWE. WWE had a right to reject Take-Two’s game if it did not find it authentic. So, Take-Two reproduced Orton’s tattoos in the game to keep the depiction of Randy Orton authentic.

Arguments

Alexander filed a before the District Court of Southern District Of Illinois for copyright infringement under in and moved for partial summary judgement on the grounds that she never authorized WWE to recreate her tattoo. The Defendants also filed a motion for partial summary judgement on the basis of three : 1) de minimus, 2) fair use doctrine and 3) implied license.

The Court's Conclusions

The Court, by dated , rejected the Defendants’ motion and allowed the Plaintiff’s motion for Partial summary judgement. The court found that protection of a work required a minimal degree of creativity, or intellectual production. In this context, a work is protectable once it is affixed to a tangible medium, and the tattoo fulfilled this affixation. The court opined that the dispute to copying does not arise as the defendants had admitted to copying the tattoo. Citing it stated that the burden is on the Defendant to prove the copying was authorised. Since Alexander had proven her copyright in the tattoo designs and that it had been copied, she met her onus and now the Defendants needed to prove authorisation for their reproduction.

Rejecting the defendant’s arguments, the Court stated that an implied license does not apply to this case. An only authorises the licensee to use the work, not further license it out.,  Alexander impliedly licensed Orton to disseminate and display the tattoos as part of his likeness, but due to the vague licensing terms between parties, the issue was triable and could not be allowed in partial summary judgement.

On fair use, the Court  stated that it needed to consider in determining whether the doctrine applies: (1) the purpose and character of the use, including whether  such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The Court found in favour of the Plaintiff in second and third issue and stated that the first and fourth issue were triable.

In assessing damages, the jury considered the value of the tattoo to the video game, what role it played in the Defendant’s profits from WWE 2K series, and the lost license fees for Alexander. The jury’s $3,750 USD award only accounted for the lost license fees, as the importance of the tattoos for the profit from the video game could not yet be inferred.

Would Alexander Have Won this Case in Canada?

In the US, the author only needs to show that that their work was original and was copied, and the defendant must prove consent. In Canada, the Plaintiff has the onus to prove consent. of the Canadian Copyright Act clearly requires the copyright owner to prove that (1) the defendant did something the owner alone had the right to do, and (2) the defendant did it without the copyright owner’s consent. However, the US law does not contain the word consent. Consent’s importance was recently affirmed in , where the Canadian Court upheld the Plaintiff’s onus to prove consent was not given.

Applying this consent principle to the present case, the stated that Catherine Alexander never consented as she  refused and advised WWE that she did not give them permission to copy, duplicate or reproduce her design. So, Catherine Alexander might have also successfully proven absence of consent and would likely have had a similar outcome under Canadian copyright law.. 

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