The singer/rapper known as Cardi B has been embroiled over the last three years in a copyright lawsuit involving tattoos. In particular, tattoo artist, Kevin Brophy, claims that the design of his back tattoo was appropriated and used without his permission on a male figure on the cover art of Cardi B’s music compilation called Gangsta Bitch Music, Vol. 1. The case is scheduled to go to trial in mid-October 2020. See news report here.

Copyright law and tattoo art have created a complex legal conundrum. Matters are made worse by the fact that courts have been slow in resolving the legal issues. On the one hand, several courts have held that tattoo designs are able to be copyrighted. The Copyright Act allows for the registration of copyrights with respect to any “original work of authorship” that is “fixed in any tangible medium of expression.” See 17 USC § 101 et seq. Clearly, tattoos meet this definition. Indeed, the Copyright Office takes the position that tattoos are copyrightable and has routinely issued Copyright registration certificates for tattoo designs.

On the other hand, persons who wear tattoos created by tattooists have an intrinsic right to freedom of movement and freedom of expression. They cannot be expected to pay copyright royalties every time that they go outside nor can they be expected to keep their tattoos covered up.

Courts have partially resolved this conflict by holding that tattoo artists provide an implied copyright license to their patrons when they provide the ink. This is based on the obvious fact that tattoo artists know that persons wearing their art will be appearing in public places and in photos where the tattoos will be visible. In general, implied copyright licenses are deemed to exist where a court finds that the person creating a work at another’s request provides the work intending and/or expecting and/or having reason to believe that the other will display, copy, and distribute it. This is certainly true with respect to most tattoos. The artist provides the tattoo and certainly expects — or has reason to believe — that the person wearing the tattoo will display, copy and distribute the tattoo through public appearances, social media, and photographs.

Indeed, this was the legal holding of Solid Oak Sketches, LLC v. 2K Games, Inc., Case No. 16-CV-724-LTS-SDA (US S.D.N.Y. March 26, 2020). That case involved tattoos on various sports personalities and use of their likenesses (with the tattoos) in video games. The court agreed that the tattoos at issue were copyrightable. However, the court held that the tattoo artists had provided implied copyright licenses for the players, even when their likenesses were used in video games. The artists knew that they were providing tattoos for sports figures who would be appearing on television and engaged in personal and social media appearances. As such, the artists knew that their tattoo art would be on full display and would be copied, reproduced and distributed. Based on this, the court held that “… the Players, who were neither requested nor agreed to limit the display or depiction of the images tattooed onto their bodies, had implied licenses to use the Tattoos as elements of their likenesses.” The court further held that the implied licenses could be transferred to the video game companies.

The Cardi B case presents a different sort of question and it will be interesting to see how the case is resolved. In the Cardi B case, Mr. Brophy, the tattoo artist, did not ink the design onto the individual in question. Rather, the individual is alleged to have obtained a tattoo very similar to a design copyrighted by Brophy, and an image of that tattoo was used publicly and distributed widely. These factual differences suggest that Brophy’s tattoo copyright infringement claim is stronger than the legal claims in other cases.

For more information and/or if you have questions about protecting your copyrights and other intellectual property, contact the copyright lawyers at Revision Legal at 231-714-0100.

Copyright Registration for Tattoo Designs

The Copyright Act, 17 U.S.C. § 102(a)(5), expressly protects pictorial, graphic, and sculptural works, a category the Copyright Office has consistently interpreted to include tattoo art. A tattoo design is fixed in a tangible medium—the human skin—and meets the low threshold of originality required by Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991), so long as it reflects at least a modicum of creative expression. The Copyright Office issues registration certificates for tattoo flash and custom designs routinely, and registration preserves the right to recover statutory damages up to $150,000 per willful infringement.

Registration, however, does not resolve the central tension in tattoo copyright law: the tattooed person moves through the world wearing the artist’s registered work, creating situations in which the artist’s exclusive reproduction right collides with the wearer’s freedom of movement, expression, and likeness.

The Implied License Doctrine in Depth

Courts addressing tattoo copyright disputes have consistently found that the act of tattooing carries an implied nonexclusive license from the artist to the wearer. The leading treatment appears in Solid Oak Sketches, LLC v. 2K Games, Inc., 449 F. Supp. 3d 333 (S.D.N.Y. 2020), which involved the realistic digital reproduction of NBA players’ tattoos in the NBA 2K video game series. The court held that the tattoo artists, by inking the players, granted an implied license for the players—and those who depicted the players—to display the tattoos as part of the players’ personas.

The implied license analysis turns on context and reasonable expectations. Courts ask: did the artist, at the time of creating the work, reasonably expect that the recipient would display, reproduce, and distribute it? For a tattoo applied to a professional athlete, the answer is almost certainly yes. For a custom design applied to a private individual who does not appear in commercial media, the implied license scope is narrower, though still present for incidental display in ordinary life.

Scope of the Implied License: Commercial Use Limits

The implied license created by a tattoo transaction is not unlimited. Courts have not yet drawn a bright line, but the doctrine suggests the license is coextensive with the wearer’s own persona-related activities. A professional athlete’s license covers professional photography, game programs, trading cards, and video-game likenesses because these all flow naturally from the athlete’s public persona. The license arguably does not cover a third party that specifically wants to feature the tattoo as a standalone design element in advertising without reference to the wearer’s persona.

The Cardi B litigation involving Kevin Brophy’s back tattoo illustrates the outer boundary. Brophy alleged that his tattoo design was reproduced on a different male figure in commercial cover art—not on Brophy himself and not as an incidental reproduction of Brophy. That use falls outside any implied license Brophy granted by wearing the tattoo publicly, because the commercial artist used only the design, divorced from the original bearer’s identity. The case settled before a definitive ruling, but confirmed that tattooed persons cannot be deemed to have licensed their designs for arbitrary commercial appropriation by third parties.

Practical Guidance for Tattoo Artists and Clients

Tattoo artists who wish to retain meaningful copyright control should take several concrete steps. First, register copyrights in original custom designs with the U.S. Copyright Office before or shortly after applying the tattoo. Second, use a written client agreement that defines the scope of the license being granted, specifying that the client receives a license only for personal, non-commercial display and that commercial exploitation requires separate written consent.

Clients who wish to use their tattooed image in commercial contexts—professional athletes, models, influencers, or anyone who licenses their likeness—should address this with the tattoo artist before the session. Video game developers, film studios, and advertisers who depict tattooed individuals in commercial works should conduct copyright clearance review to determine whether the depicted tattoo designs require separate licenses from the artists.

If you have questions about copyright protection for your creative work, whether as a tattoo artist, content creator, or business using visual media, contact the copyright lawyers at Revision Legal at 231-714-0100.