Who Owns the Copyright in A Tattoo?; Lexology, October 17, 2022

McKee Voorhees & Sease PLC - Brandon W. Clark, Lexology; Who Owns the Copyright in A Tattoo?

"In this, the first ever case of its kind to reach a jury, the jury found in favor of Alexander. However, the decision was something of a hollow victory for Alexander as the jury only awarded damages of $3,750. This case illustrates many of the issues with putting a copyright case in front of a jury as the court removed many of Take Two’s potential defenses from the jury’s consideration including de minimus use, an implied license, and waiver.

While the issues are novel and some of the case specific facts are fascinating, the outcome of the case could have a significant impact on copyrights and licensing for video games, television, motion pictures, and photographs. It is too early to tell what specific impact the result could have, and the minimal damages award will likely prevent an onslaught of similar cases, but the result does indicate a potential increase in risk when using someone’s name, image, and likeness, and will likely change the way these licenses are drafted in the future.

From a practical perspective, since copyright rights can only be transferred via a signed writing, the one sure way to avoid this risk is to ensure that tattoo artists sign a copyright assignment at the time the work is completed."