Tattoos are an ever-present part of the cultural conversation. In the words of the freshly released 1989 (Taylor’s Version), they “never go out of style”. We routinely engage with tattoo art-related issues in the context of licensing, fashion collaborations, and frankly any agreement that permits using the image of talent with prominent body art. While a priority is to ensure that appropriate rights and permissions are exchanged, it is also important to pause and consider potential legal ramifications associated with the nature of the tattoo imagery itself.
A few years ago, celebrity tattooist Kat Von D was sued for copyright infringement by a photographer whose portrait of Miles Davis was used by Von D as a reference for a tattoo. This month, a California federal judge held that Von D failed to demonstrate that the tattoo is transformative and determined that a jury must decide whether Von D’s work, and her associated social posts promoting the project, constitute copyright infringement or fair use. Sedlik v. Von Drachenberg et al., case number 2:21-cv-01102 (C.D. Cal. October 10, 2023). Notably, just last year, the judge found that Von D met the burden to show that the tattoo had a purpose and meaning distinct from the portrait. However, the Court was compelled to change its analysis following the intervening U.S. Supreme Court decision Andy Warhol Foundation v. Goldsmith, which emphasized that the transformative use test must focus on whether a defendant’s use of a copyrighted work has a “further purpose or different character” vs. the meaning or aesthetic of the defendant’s work.
This case is a reminder that while tattoos are replete with creative and cultural appeal, the procurement, display and commercialization of tattoo art trigger important copyright considerations. Moreover, if the jury finds that social media promotion of the tattoo design constitutes a commercial purpose, that may open the door to publicity rights claims as well.
Brands and talent can seek to mitigate risk by obtaining contractual protections around tattoo art. Talent should procure a written consent and release from the tattoo artist that, among other terms, allows the talent to freely display and exploit the tattoo in any manner without further obligation, and secures representations surrounding the design. Brands engaging inked talent should specifically receive a grant of rights to use talent’s tattoos and body art as an element of the persona license and seek indemnification from an IP and publicity rights perspective. Furthermore, if brands desire to engage talent with tattoos that may trigger third party IP or publicity rights concerns (e.g., logos, well-known characters, or the image or likeness of a third party), brands can reduce risk by covering the tattoos, editing them out of the image (subject to contractual rights), or positioning them away from camera.