Client Alerts
February 15, 2024

Is That Tattoo Infringing? The Complicated Copyright Questions Surrounding Tattoos

Stites & Harbison Client Alert, February 15, 2024

Tattoos have been at the core of several copyright cases over the last few years. One of the earliest well-known examples was a suit by Mike Tyson’s tattoo artist over the use of Tyson’s face tattoo design in the movie The Hangover Part II, which settled out of court in 2011. However, several more recently undecided cases have raised issues tied to tattoos and copyright infringement.

One such issue is the question of reproducing tattoos in other media. In the main litigations on this topic, the specific media was video games, with athletes being depicted in sports games. Take-Two Interactive Software was a named defendant in two of these suits, one in the Southern District of New York over the NBA 2K game, and one in the Southern District of Illinois over WWE 2K. The infringement claims in these actions arose from the game using real players and wrestlers, and recreating their images, including their tattoos, in the games. Both courts found that tattoos are protectible by copyright but came to very different decisions on the use of the tattoos in games. The New York court determined that the use of the NBA players’ tattoos was transformative and protected by fair use, while the Illinois court rejected this argument and a jury found for the plaintiff on the infringement claim.

Most recently, another infringement question has been raised—can the tattoo itself infringe someone’s copyright? Photographer Jeffrey Sedlik sued celebrity tattoo artist Kat Von D over a photo Sedlik took of Miles Davis, a photo which Von D used as the basis for a tattoo on a friend’s arm. (Sedlik v. Drachenberg, C.D. California, 2:21-cv-01102-DSF-MRW). Sedlik claimed that the tattoo, which was very similar to his photograph, infringed his copyright in the photo. The jury found for Von D in January 2024, holding that the tattoo was not substantially similar and stating that her use of the photo was fair use, but Sedlik’s attorney has already stated that there will be an appeal. Even without an appeal, as seen in the video game cases, different courts can take very different positions on what is similar, what is transformative, and what is fair use under copyright law.

If the appeal successfully overturns the previous decision in favor of Sedlik, it could be very detrimental to tattooing given that many artists use photos or other art as a reference for their tattoos. Additionally, while this case is against the artist and not the artist’s client with the tattoo, if the tattoo itself is deemed copyright infringement there could certainly be future legal issues for the individual who received the tattoo (especially if that individual publishes photos or videos of themselves on social media or elsewhere, or allows others to use their image and likeness where the tattoo is visible). Those interested in tattoos or the tattoo industry would do well to keep informed on these developing legal issues. Of course, in addition to copyright infringement, tattoo artists and their clients should also be aware of the potential legal issues arising from the use of trademarked names and logos used in their art .

Stites & Harbison, PLLC’s full-service Intellectual Property & Technology Group regularly assists clients in the acquisition, management, licensing, and litigation of patents, copyrights, trademarks, and trade secrets. For questions, comments, or assistance with any intellectual property-related matters, please contact the author or any of the other attorneys in the IPT group.

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Intellectual Property & Technology Intellectual Property Litigation Licensing Trademarks Copyrights Patent Prosecution & Protection Gaming Sports & Entertainment