We previously blogged about a case in New York that addressed these sensitive issues. In a new blog posted on our Sports Shorts blog, we’re revisiting this issue as ruled recently by an Illinois court.
If these questions were litigated in the UK, a similar outcome would likely result. A tattoo is copyrighted as an artistic work as long as the design is the author’s own intellectual creation (and has not been slavishly copied from an earlier work). However, there are notable differences from the approach under English law. For example, the UK does not have a system for registering copyrights. Proof of ownership of copyrights is therefore usually proof of authorship and (if relevant) a valid assignment – ie proof of the title chain.
Regarding the question of whether the copyright on a real person’s tattoos will be infringed if that person is digitally reproduced in a computer game, one could consider the case of the Premier League football association against Panini in which the English football team’s logo is reproduced on football became sticker albums without permission. In this case, the court ruled that there was no copyright infringement as the inclusion of the artistic work was in order under British fair use doctrine, which is contained in page 31 of the Copyright Designs and Patents Act 1988 for “incidental inclusion” . Similarly, an English court could say that a tattoo that is not prominent in a gameplay will benefit from this exception.
Another important difference from the Illinois court approach is that the UK does not have copyright infringement litigation. Instead, cases are heard by single judges, often experienced lawyers specializing in intellectual property law issues.
In the Illinois case, tattoo artist Catherine Alexander filed a motion summary of the verdict against the creators of the WWE 2K video game series, which featured the tattoos of professional wrestler and current WWE Champion Randy Orton. The artist’s application was unsuccessful. England also has summary judgment and injunction options and the thresholds for success are also high. In any difficult case, a court will prefer to bring the matter to court rather than adjudicating on the intermediate stage. For temporary relief, a “balance of convenience” test must be overcome even when there is a serious problem to be solved. Similarly, for a summary assessment, it must be shown that the claim has no real chance of success – a real challenge when there may be a decent legal argument for a violation.
What is interesting is whether the result would be different in the US or UK if the tattoos (or part of them) were registered as trademarks. The UK has no “fair use” exception for trademark infringement. Therefore, the applicant / plaintiff would likely have a strong argument for infringement based on whether or not they were registered for use in relation to computer games. Getting trademark registration for an original graphic design would normally not be a problem under English law. The applicant would only have to prove that he can indicate the origin of the mark (it must be distinguishable). However, a defendant would likely argue that the use of this design as a tattoo on an avatar within the game is not a commercial use that interferes with the so-called “essential function” of the brand and is therefore not an infringement.