UIC Law Open Access Repository

Holtzman, Abigail

English

A Proposal on Deciding Trademark Infringement Claims to Limit Confusion for Consumers

Nafziger, Skylar

The Right to Be Heard

King, Yolanda M.

UIC  
REVIEW OF INTELLECTUAL PROPERTY LAW 
 
 
GAME ON: THE CONTINUING CHALLENGES FOR ENFORCEMENT OF 
TATTOO COPYRIGHTS 
YOLANDA M. KING 
ABSTRACT 
In this essay, Professor King revisits the challenges that tattoo artists encounter when 
they seek to establish infringement of an exclusive right in a tattoo inked on a client’s 
body. In August 2014, Professor King published The Enforcement Challenges for Tattoo 
Copyrights, the second article in a series of articles to examine the applicability of 
copyright law to tattoos. While The Enforcement Challenges observed that the selection 
of the human body as the medium of expression for artists’ works raises legal and 
practical concerns that necessitate a diminution in the exclusive rights of copyright 
owners vis-à-vis tattoo bearers, it also concluded that vigorous enforcement of tattoo 
artists’ rights is warranted. The past ten years have demonstrated that the issues 
raised in The Enforcement Challenges are still complex and evolving. Tattoo artists 
continue to face insurmountable challenges in the enforcement of their rights, whether 
the users of their works are their clients or third parties outside of the artist-client 
relationship. This essay reconsiders the enforcement challenges for tattoo copyrights 
in light of recent cases and determines that, while courts have found in favor of 
defendants based on de minimis use, fair use, and implied license, there is a court 
decision that signals to tattoo artists that copyright law will be properly applied to 
prevent unfettered uses of their works in video games, particularly where the uses are 
not connected to the avatars who represent the tattoo bearers in real life. 
 
Cite as Yolanda M. King, Game On: The Continuing Challenges For Enforcement Of Tattoo 
Copyrights, 25.1 UIC REV. INTELL. PROP. L. 1 (2025). 
[25.1:1 2025]        Game On: The Continuing Challenges for Enforcement of Tattoo 
Copyrights 
1 
GAME ON: THE CONTINUING CHALLENGES FOR ENFORCEMENT OF TATTOO 
COPYRIGHTS 
YOLANDA M. KING* 
Welcome to my life, tattoo 
We’ve a long time together, me and you 
I expect I’ll regret you but the skin graft man won’t get you 
You’ll be there when I die 
Tattoo 
  —Lyrics from “Tattoo,” by The Who1 
 
After years of settlements, 2  a few tattoo artists are taking their copyright 
infringement suits to trial, both as plaintiff3 and defendant.4  Over a decade ago, I 
authored a series of articles about copyright protection for tattoos and the enforcement 
of tattoo copyrights, The Challenges “Facing” Copyright Protection for Tattoos5 and The 
Enforcement Challenges for Tattoo Copyrights, respectively.6  At a time when there 
were no reported decisions on the eligibility of tattoos for copyright protection and the 
 
* © 2025 Associate Professor of Law, University of Illinois Chicago School of Law.  J.D., Harvard 
Law School, B.A., Indiana University-Purdue University at Indianapolis. I wish to thank Dean Nicky 
Boothe and University of Illinois Chicago School of Law whose generous support assisted in the 
preparation of this Article.  Also, I am grateful to the University of Illinois Chicago School of Law 
Review of Intellectual Property Law Board and my Student Legal Aide, Alyssa Sugay, for their 
diligence and hard work in assisting me with this essay. 
1 THE WHO, Tattoo, on The Who Sell Out (Decca Recs. 1967). 
2 See, e.g., Compl., Reed v. Nike, Inc., No. 3:05-CV-00198 (D. Or. Feb. 10, 2005), dismissed, (D. 
Or. Oct. 19, 2005) (plaintiff alleged copyright infringement based on unauthorized use of copyrighted 
tattoo in television commercial); Compl., Whitmill v. Warner Bros. Ent. Inc., No. 4:11-CV-752 CDP 
(E.D. Mo. Apr. 28, 2011), dismissed, (E.D. Mo. June 22, 2011) (plaintiff alleged copyright infringement 
based on unauthorized use of copyrighted tattoo in the motion picture The Hangover Part II and in 
promotion and advertising for the motion picture); Compl., Allen v. Elec. Arts, Inc., No. 5:12-CV-3172 
(W.D. La. Dec. 31, 2012), dismissed, (W.D. La. April 9, 2013) (plaintiff alleged copyright infringement 
based on unauthorized use of copyrighted tattoo on video game cover and in video game itself); Compl., 
Escobedo v. THQ, Inc., No. 2:12-CV-02470-JAT (D. Ariz. Nov. 16, 2012), dismissed, (D. Ariz. Dec. 11, 
2013) (plaintiff alleged copyright infringement based on unauthorized use of copyrighted tattoo in 
video game). 
3 See, e.g., Compl. Hayden v. 2K Games, Inc., et al, No. 1:17-CV-02635 (N.D. Ohio Dec. 18, 2017) 
(plaintiff alleged copyright infringement based on unauthorized use of copyrighted tattoos in video 
game); Compl., Alexander v. Take-Two Interactive Software, Inc., No. 3:18-CV-00966 (S.D. Ill. April 
17, 2018) (plaintiff alleged copyright infringement based on unauthorized use of copyrighted tattoo in 
video game). 
4 See Compl., Sedlik v. Von Drachenberg, No. 2:21-CV-01102 (C.D. Cal. Feb. 7, 2021) (plaintiff 
alleged copyright infringement based on unauthorized reproduction of plaintiff’s photograph on arm 
of defendant’s client and on social media). 
5 See Yolanda M. King, The Challenges “Facing” Copyright Protection for Tattoos, 92 OR. L. REV. 
129 (2013)  (this article was the first of a series of three articles to examine the applicability of copyright law to 
tattoos). 
6 See Yolanda M. King, The Enforcement Challenges for Tattoo Copyrights, 22 J. INTELL. PROP. 
L. 29 (2014)  (this article was the second of a series of three articles to examine the applicability of 
copyright law to tattoos; Yolanda M. King, The Right of Publicity Challenges for Tattoo Copyrights, 16 
NEV. L.J. 441 (2016) (the third and final article in the series, is beyond the scope of this essay).   
 
 
2 [25.1:1 2025]                      UIC Review of Intellectual Property Law                        
 
enforcement of tattoo copyrights, these Articles concluded that (1) tattoos are pictorial 
works that are eligible for federal copyright protection7 and (2) in light of the unique 
challenges posed by the selection of the human body as a medium of expression, tattoo 
artists’ can expect diminution of their exclusive rights in enforcement efforts against 
their tattoo-bearing clients to a significant degree and diminution of their exclusive 
rights in enforcement efforts against parties outside of the tattoo artist-client 
relationship to a lesser degree.8 
Now that courts have addressed the scope of enforcement for tattoo copyrights, 
particularly for tattoos reproduced and displayed on video game avatars in Solid Oak 
Sketches, LLC v. 2K Games, Inc.,9 Hayden v. 2K Games, Inc.,10 and Alexander v. Take-
Two Interactive Software, Inc.,11 it is apparent that courts are unlikely to favor tattoo 
artists in some instances, but the ability to establish copyright infringement of a tattoo 
used in video games is not foreclosed.  In 2016, tattoo licensing company Solid Oak 
Sketches sued developers, marketers, and distributors of the NBA 2K video game 
series for copyright infringement based on five tattoos inked on National Basketball 
Association (“NBA”) players’ bodies that appeared on the avatars for these same 
players in the video game series.  In 2017, tattoo artist James Hayden sued the same 
defendants for copyright infringement on similar grounds, the use of Hayden’s 
copyrighted tattoos inked on the bodies of NBA players that later appeared on the 
avatars of the same players in the NBA 2K video game series.  In 2018, tattoo artist 
Catherine Alexander sued Take-Two Interactive, Inc. and World Wrestling 
Entertainment, Inc. for the use of copyrighted tattoos on wrestler Randy Orton’s body 
that later appeared on Orton’s avatar and other avatars at users’ discretion in the 
WWE 2K video games.   
The Solid Oak Sketches and Hayden courts both rejected the plaintiffs’ copyright 
infringement claims, 12  finding the tattoo uses were de minimis, 13  fair use, 14  and 
 
7 King, supra note 5, at 160 (“If that tattoo meets the requirements of copyrightability and is 
conceptually separable from the human body, then it is a copyrightable PGS work.”). 
8 King, supra note 6, at 70. 
9 Solid Oak Sketches, LLC v. 2K Games, Inc., 449 F. Supp. 3d 333 (S.D.N.Y. 2020). 
10 Hayden v. 2K Games, Inc., 375 F. Supp. 3d 823 (N.D. Ohio 2019). 
11 Alexander v. Take-Two Interactive Software, Inc., No. 18-cv-966-SMY, 2022 U.S. Dist. LEXIS 
171979 (S.D. Ill. Sep. 22, 2022). 
12 Solid Oak Sketches, LLC, 449 F. Supp. 3d at 353.; Hayden, 375 F. Supp. 3d at 830-31. 
13 Id. at 344 (stating that “To establish that the infringement of a copyright is de minimis, and 
therefore not actionable, the alleged infringer must demonstrate that the copying of the protected 
material is so trivial ‘as to fall below the quantitative threshold of substantial similarity, which is 
always a required element of actionable copying.’”) (citing Sandoval v. New Line Cinema Corp., 147 
F.3d 215, 217 (2d Cir. 1998) (quoting Ringgold v. Black Ent. Television, Inc., 126 F.3d 70, 74 (2d Cir. 
1997)).  
14  17 U.S.C. § 107(1)-(4) (The Copyright Act provides that “[T]he fair use of a copyrighted 
work . . . for purposes such as criticism, comment, news reporting, teaching . . . , scholarship, or 
research, is not an infringement of copyright. In determining whether the use made of a work in any 
particular case is a fair use the factors to be considered shall include – (1) the purpose and character 
of the use, including whether such use is of a commercial nature or is for nonprofit educational 
purposes;  (2) the nature of the copyrighted work;  (3) the amount and substantiality of the portion 
used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential 
market for or value of the copyrighted work.”).  
[25.1:1 2025]        Game On: The Continuing Challenges for Enforcement of Tattoo 
Copyrights 
3 
subject to implied license. 15   Intellectual property scholars have observed that a 
contrary outcome in Alexander makes the case an outlier.16  In Alexander, the jury 
awarded actual damages of only $3,750 to the tattoo artist and rejected defendants’ 
fair use defense.17  While the court later granted defendants’ motion for judgment as a 
matter of law on Alexander’s damages award because she failed to present evidence of 
the tattoo’s value, the court still denied judgment as a matter of law on the fair use 
defense.18    
The use of copyrighted tattoos in Alexander is distinguishable from the uses in 
Solid Oak Sketches and Hayden.  In Solid Oak Sketches and Hayden, the copyrighted 
tattoos at issue were only used in connection with the avatars’ bodies that depicted the 
real-life tattoo bearers—professional basketball players featured in the NBA 2K video 
game series.  In contrast to those uses, which may be reasonably objectionable by tattoo 
artists, the WWE 2K video game’s “Create-a-Star” feature allowed a player to take the 
tattoos at issue and apply them to a custom wrestler avatar.19  This feature, which 
permitted use of the tattoos disconnected from Orton and his avatar’s body, influenced 
the court’s analysis of the first fair use factor, the purpose of the use (“this usage had 
nothing to do with reproducing the tattoos in the video game to depict Orton most 
accurately”), and the third fair use factor, the amount and substantiality of the portion 
used in relation to the copyrighted work as a whole (defendants’ assertion “that it was 
necessary to copy each tattoo in its entirety to depict real life accurately . . . belied by 
the ‘Create-a-Star’ feature”), in favor of Alexander.20  Therefore, the court concluded 
that these factors in combination with fair use factor number two, the creative and 
expressive nature of Alexander’s five copyrighted tattoos, outweighed factor four, the 
effect of the use upon the potential market for or value of the copyrighted work (in light 
of Alexander’s testimony that “she had never licensed her tattoos for video games or 
any other medium” and the defense expert “provided unrebutted testimony that a 
market for licensing tattoos in videogames does not exist and was unlikely to be 
developed”), in favor of defendants.21 
The court correctly determined that the disconnected use of the copyrighted 
tattoos favored Alexander in its fair use defense analysis.22  Tattoo artists disfavor uses 
 
15 Solid Oak Sketches, LLC, 449 F. Supp. 3d at 346 (“Although the Second Circuit has not yet 
ruled on the precise circumstances under which an implied non-exclusive license will be found,” courts 
in this Circuit have found an implied non-exclusive license “where one party created a work at the 
other’s request and handed it over, intending that the other copy and distribute it.”)(citing Weinstein 
Co. v. Smokewood Ent. Grp., LLC, 664 F. Supp. 2d 332, 344 (S.D.N.Y. 2009) (internal quotation marks 
omitted)). 
16  See Eric Goldman, Jury Awards Damages to Tattoo Artist for Video-Game Depiction – 
Alexander v. WWE 2K, TECHNOLOGY & MARKETING LAW BLOG, (Oct. 6, 2022), 
https://blog.ericgoldman.org/archives/2022/10/jury-awards-damages-to-tattoo-artist-for-video-game-
depiction-alexander-v-wwe-2k-guest-blog-post.htm; see also Aaron Moss, Tattoo Artist’s Trial Win is 
a Loss for Bodily Autonomy, Free Speech, COPYRIGHT LATELY, (Oct. 2, 2022), 
https://copyrightlately.com/tattoo-artist-trial-victory-copyright-lawsuit/. 
17 See Alexander, No. 3:18-cv-00966-SMY, 2022 U.S. Dist. LEXIS 171979 (S.D. Ill. Sep. 30, 2022).  
18 Id. at *7-9.  
19 Id. 
20 Id. 
21 Id. 
22 Transcript of Preliminary Injunction Hearing at 56, Whitmill, No. 4:11-CV-752 CDP (E.D. Mo. 
June 21, 2011) (this use is reminiscent of the defendant’s disconnected use of the facial tattoo inked 
 
 
 
4 [25.1:1 2025]                      UIC Review of Intellectual Property Law                        
 
of their tattoos that are disconnected from the body of the tattoo bearer. 23   This 
longstanding industry norm also informs the court’s consideration of whether an 
implied license would be likely although this defense was not presented to the jury in 
Alexander.   
The Enforcement Challenges article encouraged tattoo artists to enforce their 
rights against the use of tattoos disconnected from the client’s body.24  Despite the 
outcomes of Solid Oak Estates and Hayden, tattoo artists should remain vigilant in the 
enforcement of their rights, particularly in instances where the copyrighted tattoos are 
used apart from the tattoo bearer’s body or the depiction of the tattoo bearer’s body in 
a video game or other medium.  Alexander illustrates that a tattoo artist can show 
infringement of their work in a video game, which signals that a tattoo artist’s work 
can be protected in this context. 
 
 
on Mike Tyson in The Hangover Part II motion picture.  In Whitmill, No. 4:11-CV-752 CDP (E.D. Mo. 
June 22, 2011), the court observed that unlike in the first Hangover movie, the use of the tattoo was 
disconnected from Tyson’s face in the sequel, and though it was prominently displayed on the face of 
another actor throughout the movie, the display of the tattoo was insignificant to the plot of the 
movie.).   
23 Aaron Perzanowski, Tattoos and IP Norms, 98 MINN.  L. REV. 511, 537 (2013) (“In addition to 
public displays of their tattoos, [tattoo artists] acknowledge clients’ rights to reproduce images of their 
tattooed bodies, whether by uploading images to their Facebook profiles, submitting photos for 
publication in tattoo magazines, or even reproducing a picture of the tattoo for commercial 
purposes….But under prevailing industry norms, not all client uses are acceptable.  Tattooers 
distinguish between uses of the tattoo as applied to the body, which are universally accepted, and uses 
of the tattoo design as a work disconnected from the body, which are subject to greater skepticism.”). 
24 King, supra note 7, at 69. (“This Article not only concurs with Perzanowski's conclusion that 
tattoo artists may break from the industry norm against litigation when such third party uses take 
place but also encourages tattoo artists to enforce their rights against these uses.”).  


Game On: The Continuing Challenges for Enforcement of Tattoo Copyrights

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