Intellectual Property Insights from Fishman Stewart
Mini Article – Volume 23, Issue 20
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Tattoo Copyright Chronicles
By Kristyn Webb
The art of tattooing can be traced back to ancient times. In fact, archaeologists have uncovered tattoo tools that date back at least 12,000 years. However, lawsuits over tattoos and copyright law are a much, much more recent phenomenon.
This year, two such lawsuits have been grabbing headlines. One is a lawsuit filed by photographer Jeff Sedlik against tattoo artist Kat Von D, star of the reality TV series LA Ink, over Kat’s tattoo of Sedlik’s iconic photograph of Miles Davis. Kat tattooed the image on her friend and posted the finished work on social media. The trial court initially concluded that the matter was best left for a jury to decide but held the case and waited for the US Supreme Court’s ruling in another lawsuit over Andy Warhol’s use of photographer Lynn Goldsmith’s pictures of Prince. Now that the Supreme Court has made its ruling, the trial court has considered the impact of the Supreme Court’s ruling and determined that the matter must still go to a jury to decide whether the tattoo and social media post are copyright infringement or excusable fair use.
In another lawsuit, Molly Cramer tattooed an image of Joe Exotic, the star of the Netflix series Tiger King, on her husband’s thigh as a way to raise money to support her tattoo business during the Covid-19 pandemic. Cramer obtained permission from Joe Exotic to use his likeness, obtained a copyright registration of the tattoo, and posted a photo of the tattoo to her social media. Then, without Cramer’s permission, Netflix used the image from Cramer’s social media in a 2.2 second montage in an episode of Tiger King Season two. Cramer demanded $10 million from Netflix, which it declined to pay, and she then sued Netflix for copyright infringement. The court dismissed the lawsuit, concluding that Netflix’s use of the image was fair use. Netflix, being a streaming service, was not likely to usurp the tattoo market, and Cramer’s purpose in creating the tattoo was to capitalize on the hype generated by Netflix’s first season of Tiger King, while Netflix’s purpose in showing the tattoo image was to show the public’s reaction to its first season of Tiger King.
Roughly one-third of Americans have at least one tattoo, and the tattoo industry generates around $1.6 billion USD per year globally. A tattoo may represent an expression of art, a lifestyle choice, a cultural heritage, and an income source all at the same time. The intellectual property issues with tattoos may be nuanced. As tattoos become more popular and part of mainstream culture, we may expect the litigation related to tattoos to become more prolific as well.
Kristyn Webb is the Group Leader of Fishman Stewart’s Copyright Practice Group, and is currently earning a Master’s Degree in Copyright Law at King’s College London.
Published November 3, 2023
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