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Image: TFL

“In a simulacrum of a ’70s nightclub or—given the boudoir-pink velvet banquettes, mirrors, and miles of matching carpet—maybe a high-class pick-up joint,” as Vogue’s Sarah Mower described it, Gucci sent models down a long runway shrouded in a thick mist for Spring/Summer 2017. In a lineup of mostly pale-skinned and largely makeup-free faces, many covered by oversized-and-bedazzled glasses, others obscured with flopped-over hats or thick-rimmed visors, was one face adorned with a fair share of ink.

Latvian model, Lorens Miklasevics walked the plush pink Gucci runway with a forehead bearing his initials in a dense blackletter script, a William Blake quote appeared above his eyebrows and along his jawline. Turns out, the tattoos were temporary – just part of Alessandro Michele’s quirky Gucci charm.

Miklasevics’ temporary ink joins a slew of life-long tattoos that somewhat regularly appears on the runway and corresponding campaigns. Model Cara Delevingne’s back-of-the-neck tat was front and center in Chanel’s Fall/Winter 2014 ad, followed much more recently by peeks of her various other tattoos in Balmain’s Spring 2019 ad. Courtney Love’s “Let it Bleed” tattoo, located on the underside of her right upper-arm, was on display in one of Saint Laurent’s Spring 2013 ads. Canadian rocker Zach Choy’s permanent tattoo was front-and-center in Celine’s latest menswear campaign. And still yet, it is hardly uncommon to see hints of tattoos when Julia Nobis, Jourdan Dunn, Slick Woods, Natalie Westling and co. are on the runway.

Taken together, these instances of tattoos-in-fashion give rise to some of the questions that have been plaguing other industries with increasing frequency as of late. Sports figures and the leagues, themselves, have been grappling with how to handle certain ink in light of both copyright concerns and league-specific advertising terms.

Cleveland Cavaliers shooting guard J.R. Smith, for instance, found himself at the center of a tattoo-specific squabble when the National Basketball Association revealed that it would fine him for every game of the season that he fails to cover up the large Supreme logo on his calf. The tattoo, according to the NBA, runs afoul of the league’s Collective Bargaining Agreement, which states that “a player may not, during any NBA game, display any commercial, promotional, or charitable name, mark, logo or other identification … on his body.”

More common, however, are copyright-specific issues. Just as how original photos, song lyrics, sculptures, paintings, and novels are protected by law, so, too, are original tattoos. Accordingly, in the same way as novelists and photographers are granted a “bundle” of exclusive rights for their books and photos, including the right to reproduce, display, distribute copies of, perform, and prepare derivative works in connection with their copyright-protected works, so, too, are tattoo artists … even if their creations end up living on the body of another person.

At the center of a number of recent legal squabbles involving famous figures and their tattoos is a common question: who has the right to reproduce an individual’s tattoo for things, such as video games or films? These cases have centered on the recreation of tattoos, such as the replication of Mike Tyson’s tattoo on Ed Helms’ character’s face in the Hangover II movie, or the reproduction of LeBron James’ tattoos in virtual form for the NBA 2K video game, the latter of which is at the center of a highly-watched case that is currently underway in a New York federal court.

The recreation of a tattoo for a video game is not exactly the same scenario as the one at play in fashion campaigns, though, as in ad campaigns, celebrities and/or models’ tattoos are not often recreated; they are displayed as is, and such a commercially-oriented display could serve to violate a tattoo artist’s exclusive right – as the copyright holder – to display the tattoo in a commercial capacity.

However, even if the activity in Solid Oak Sketches, LLC v. Visual Concepts, LLC, i.e. – the LeBron James video game case – is not exactly in-line with fashion’s practice of including tattooed models in ad campaigns, there is something that that case considers that is relevant from a fashion campaign perspective: implied waivers.

If faced with a copyright infringement suit from a tattoo artist, a brand and/or model and/or celebrity could potentially wiggle their way out of liability by claiming that by tattooing a model, celebrity, or some other public figure, the tattoo artist knew – or should have known – that such a tattoo would be on display for the public to see, thereby, granting an implied license from the tattoo artist to the tattoo-bearing party to display his/her tattoo.

“When a tattoo artist etches a tattoo onto [LeBron] James, for example, that artist has every reason to know that pictures, video and all sorts of reproductions of it are going to take place because that tattoo is now, quite literally, part of the athlete,” J. Michael Keyes, a partner with Dorsey & Whitney LLP, told Law360. The same almost certainly applies for models and celebrities.

With that in mind, the question becomes not whether an implied license exists but more aptly, what does that implied license actually entail? Does it simply cover the day-to-day non-commercial display of a tattoo on a model’s arm, in other words, him/her wearing a short-sleeve short which reveals an arm tattoo on his/her daily coffee run? Or … is it broad enough to permit display in a Chanel ad campaign?

According to a recent New York Times piece, while “lawyers generally agree that an implied license allows people to freely display their tattoos in public, including on television broadcasts or magazine covers,” the specifics will, of course, vary on a case-to-case basis depending on the tattooed person, his/her level of fame, and other factors. In its own way, the NBA 2K case will provide some answers on this front, assuming it does not settle before trial.

“A verdict for either side would set an important precedent on how the copyright holder of a tattoo design can enforce those rights,” Yolanda M. King, an associate law professor at Northern Illinois University, told the Times, in large part because this is an area ripe for some concrete case law. Most cases that have come before this one have settled out of court and before a jury has made any determinations.

In the meantime, and given the rise in lawsuits in their arena, it is generally recommended that famous figures – whether it be a sports star or a Chanel model – secure rights in the tattoos that appear on their bodies by way of an assignment of the copyright from the tattoo artist or at the very least, a formal and broad license that covers such commercial uses.

UPDATED (March 18, 2020): In a more recent case, tattoo artist Catherine Alexander filed suit in April 2018, accusing World Wrestling Entertainment Inc. and game maker Take-Two Interactive Software Inc. of allegedly infringing her copyrights in the tattoos that appear in professional wrestler Randy Orton in real life and in their video game, WWE 2K. In a decision on March 18, Judge Staci Yandle of the US District Court for the Southern District of Illinois sided with Alexander by dismissing WWD and Take-Two’s motion to dismiss, and holding that “there are sufficient factual allegations in plaintiff’s amended complaint to allow her claims to proceed against the defendants as to the remaining five registered tattoos.”