Copyright Law & Tattoos: A Tiger King Story

By: Ellie Burgin

Cramer v. Netflix

Let us set the scene. It is March 2020 and lockdown is in full effect. People are recording themselves singing to doctors, baking sourdough bread with frenzied intensity, and of course, watching the first season of Tiger King on Netflix (officially titled Tiger King: Murder, Mayhem and Madness”). The extraordinarily popular first season of the show followed Joe Exotic (real name Joseph Allen Maldonado), the gay, mulleted, denim-short clad, gun-toting, big cat zoo keeper as he ran his booming business, navigated his polygamous relationships, and hatched an ill-fated plan to exact revenge on his arch-nemesis, Carol Baskins. Nielsen estimated that the first season of Tiger King was watched by 34.3 million people over its first 10 days of release from March 20th to March 29th.  [1].  It was No. 1 most-tweeted TV show tracked by Nielsen during that time, clocking 1.8 million organic (nonpaid) interactions on Twitter. [2].  At the end of its first month of release, the first season was watched by a whopping 64 million households. [3]. In other words, Tiger King was a pop cultural phenomenon, in no small part from its one-of-a-kind protagonist, Joe Exotic.

Molly Cramer, the Plaintiff in today’s case, is a tattoo artist. [4]. In March 2020, she and her husband, Noah Cramer, were forced to close their tattoo parlor due to the COVID-19 pandemic. [5]. Noah came up with an idea to drum up some money to support their tattoo business: a funny tattoo contest. [6]. Every customer who purchased a gift certificate of their tattoo business was able to vote on one of several funny tattoos, each created by Molly, where the tattoo with most votes would be tattooed on Noah. [7]. The winning tattoo was a portrait of Joe Exotic, next to a can of Lysol, adorned with COVID-19 viruses, and a “Quarantine 2020” banner underneath to really pull the whole look together.

Tiger King tattoo by Molly Cramer

The first episode of the second season of Tiger King begins, much like this article, by grounding the viewer in what the world was like in March of 2020. [8]. It then transitions into a montage of multiple video clips, ostensibly to demonstrate how popular the first season of Tiger King was at the time. [9]. Then, for 2.2 seconds, the screen is split into an 8-image panel of Tiger King memes and artworks, where the bottom left panel included Plaintiff’s Tiger King tattoo on Noah.  [10].

After the episode aired, Molly alleged she received phone calls and texts from friends and clients telling her they saw her tattoo on the episode. [11]. Ten days later, Molly and Noah reached out to the Tiger King himself to retroactively ask his permission to use his likeness in the tattoo, and to continue posting pictures of the tattoo on social media. [12]. About a month later, Molly received good news, Joe Exotic consented to both of her requests. [13]. Armed with his consent, Molly sought and obtained a U.S. copyright registration for the tattoo, VA-228504. [14]. In February 2022, Molly’s attorney sent a cease-and-desist letter to Netflix requesting that not only Netflix immediately remove the photo of the tattoo from the episode, but that they also pay her the hefty sum of $10 million to settle a copyright infringement claim. [15]. Netflix declined to pay and declined Molly’s demand to stop using the tattoo under the Fair Use doctrine. [16]. After conducting a thorough Fair Use analysis, Judge Stephanie Haines of the U.S. District Court for the Western District of Pennsylvania ruled that, as a matter of law, Netflix’s use of the tattoo in the episode was fair use. [17].

Tattoos & Copyright Law

By: cottonbro studio

Copyright law bestows certain exclusive rights to the owners of an original work of art. [18]. For “pictorial” works, these rights include the right to reproduce the work, the right to make derivative works, and the right to publicly display the work. [19]. In order for a work to qualify for copyright protection, it must be an “original work of authorship” that is “fixed in any tangible medium” and falls within one of the enumerated categories in the Copyright Act. [20]. Generally speaking, tattoos will meet the “originality” requirement because they are independent creations that have a minimum degree of creativity. [21]. Tattoos also readily satisfy the fixation requirement, given that they are permanent (or semi-permanent) designs on a person’s body.  [22]. As to the enumerated categories, it is fairly uncontroverted that tattoos would fall into the category of “pictorial, graphic, and sculptural works” of the Copyright Act [23]. While cases of copyright infringement involving tattoos are few and far between, a number exist, and all have upheld the presumption that federally-registered tattoo copyright registrations were valid. [24].

Indeed, one of the earliest tattoo copyright cases to grab the public’s attention, Whitmill v. Warner Brothers Entertainment, set the tone for the validity of tattoo copyright registratios. [25]. The Plaintiff Victor Whitmill created the now-iconic tattoo on Mike Tyson’s face, which was prominently featured in the 2011 film The Hangover. [26]. While that case ended in a settlement, Judge Perry, in her order denying Plaintiff’s motion for preliminary injunction, stated quite firmly that “[m]ost of the defendant’s arguments against [Plaintiff’s success on their copyright infringement claim] are just silly. Of course tattoos can be copyrighted. I don’t think there is any reasonable dispute about that.” [27]. So, there are sufficient grounds to establish that tattoos can be registered, and protected, by copyright law.

"Mike Tyson 2019 by Glenn Francis" by Toglenn is licensed under CC BY-SA 4.0.

What is less clear, however, is how well existing copyright case law can be analogized to tattoo cases because tattoos are not fixed on objects, but are fixed on thinking, sentient beings, which complicates the conviction that the copyright owner has sole exclusive rights to their work. Because unlike a stretch of canvas, a person can publicly display their tattoo to the world as much or as little as they please, for example by walking around in public or posting a picture of themselves on social media. Unlike a slab of granite, a person can modify their tattoo through additional tattooing, for example by changing color, adding shading, or (if they wanted to be bold) create an entirely new tattoo by adding one or more tattoos around the original. And unlike a mound of clay, a person can even destroy the tattoo by lasering it off, or covering it up with an entirely new tattoo.

In short, while it is clear that tattoos are protected by copyright law, what is less clear is to what extent. Because tattoos are fixed on a human person at least some of the exclusive rights granted to copyright owners, such as the right to publicly display the work and the right to prepare derivative works, either do not belong to, or are implicitly licensed by, the copyright owner to the recipient receiving the tattoo. [28]. Indeed, at least one court has recognized the existence of an implicit license; the Southern District of New York has held that an implied license between the tattoo artist and the inked recipient exists, since both have the understanding that the recipient, not the artist, will have control over the public display of the work, one of the core exclusive rights to a copyright owner. [29].  

By: Pavel Danilyuk

With this in mind, we return to our Cramer case. The court in Cramer, like the other courts mentioned above, upheld the presumption that Molly’s copyright in the tattoo was valid. [30]. Fair enough. But what the court does not examine (because it simply did not need to), was what if Noah had reached out to Netflix and told them it was okay for them to publicly display the photo of him, his body, and his tattoo? Or, what if Noah quietly arranged for a generous, exclusive licensing agreement with Netflix for use of their pictures of him, including his tattoo, but not a dime went to Molly. Would Molly have any recourse against Netflix, or Noah, since she owns the copyright of the tattoo? Should she have recourse?

As tattoos have only grown in popularity in the younger generations, so too should copyright infringement cases concerning them. It will be worth watching how courts around the US grapple with competing interests of Copyright Law, Name, Image, and Likeness (NIL), and fundamental rights of bodily autonomy with regards to tattoos.

Sources

[1] Spangler, Todd. “‘Tiger King’ Nabbed Over 34 Million U.S. Viewers in First 10 Days, Nielsen Says (EXCLUSIVE).” Variety. 08 April 2020. https://variety.com/2020/digital/news/tiger-king-nielsen-viewership-data-stranger-things-1234573602/.

[2]. Id.

[3] Patten, Dominic. “Netflix Reveals Strong Viewership Numbers For Mindy Kaling’s ‘Never Have I Ever’ & Spike Lee’s ‘Da 5 Bloods’ In Earnings Report.” Deadline. 16 July 2020. https://deadline.com/2020/07/netflix-viewership-results-mindy-kaling-never-have-i-ever-steve-carell-space-force-spike-lee-da-5-bloods-earnings-report-q2-1202987697/.

[4] Cramer v. Netflix, Inc., No. 3:22-cv-131, 2023 U.S. Dist. LEXIS 165510, at *1 (W.D. Pa. Sep. 18, 2023).

[5] Id. at *2.

[6] Id.

[7] Id. at *2-*3.

[8] Id. at *4-*5.

[9] Id. at *5-*6.

[10] Id. at *6.

[11] Id. at *7-*8.

[12] Id. at 8.

[13] Id.

[14] Id.

[15] Id.

[16] Id. at *9.

[17] Id. at *30.

[18] 17 U.S.C. § 106.

[19] 17 U.S.C. § 106.

[20] 17 U.S.C. § 102(a).

[21] Alexander v. Take-Two Interactive Software, Inc., 489 F. Supp. 3d 812, 822 (S.D. Ill. 2020) (“Defendants argue the tattoos are not, or at best minimally, protected by copyright law. The Court disagrees… The art of creating a tattoo naturally entails creative and expressive efforts”).

[22] Hayden v. 2K Games, Inc., 629 F. Supp. 3d 736, 744 (N.D. Ohio 2022) (finding that tattoos are “sufficiently permanent and not transitory”).

[23] See Meredith Hatic, Who Owns Your Body Art?: The Copyright and Constitutional Implications of Tattoos, 23 Fordham Intell. Prop. Media & Ent. L.J. 396, 401-02 (2012); 17 U.S.C. § 102(a)(5).

[24] Hayden, 629 F. Supp. at 743; Alexander, 489 F. Supp. 3d at 819; Solid Oak Sketches, LLC v. 2K Games, Inc., 449 F. Supp. 3d 333, 339 (S.D.N.Y. 2020); See Tattoo Art, Inc. v. TAT Int'l LLC, 498 F. App'x 341, 346 (4th Cir. 2012) (upholding validity of copyright registrations for “flash tattoo” designs, i.e., drawings of potential tattoos on paper displayed in tattoo parlors).

[25] Arianna D. Chronis, The Inky Ambiguity of Tattoo Copyrights: Addressing the Silence of U.S. Copyright Law on Tattooed Works, 104 Iowa L. Rev. 1483, 1495-1496 (2019); referring to Whitmill v. Warner Bros. Entm't., 4:11-cv-00752 (E.D. Mo. dismissed June 22, 2011)).

[26] Compl., ¶ 1, April 28, 2011; Whitmill v. Warner Bros. Entm't., 4:11-cv-00752 (E.D. Mo. dismissed June 22, 2011).

[27] Transcript Preliminary Injunction Hearing, II-3: 11-16, May 23, 2011; Whitmill v. Warner Bros. Entm't., 4:11-cv-00752 (E.D. Mo. dismissed June 22, 2011).

[28] Hatic, supra note 22, at 407-08,431-32.

[29] Solid Oak, 449 F. Supp. at 346.

[30] Cramer, LEXIS 165510 at *8, *11.