An ongoing dispute in the US between the singer Cardi B and Kevin Brophy Jr has illustrated the potential IP risks associated with tattoos.
The case in question centres on the photograph used on the cover artwork for a recent musical recording by Cardi B, which depicts a male model with a highly distinctive tattoo on his back; the face of the model is not visible, only his back can be seen.
Mr Brophy, who has a very similar tattoo on his back, alleges that members of the public will believe that he is the individual depicted in the photograph. Mr Brophy's occupation in the surfing industry requires him to be seen regularly without a shirt, such that those in the industry recognise him by the tattoo. Mr Brophy claims that Cardi B has misappropriated his likeness through use of the tattoo, and that he is therefore entitled to a share of the royalties from the musical recording.
The case remains ongoing, but does raise interesting questions regarding rights in tattoos, including who is entitled to exploit the rights subsisting in the tattoo – the tattoo artist who creates an original tattoo (who under UK law would own the copyright, being the author of the work), or the person on whose body the tattoo appears.
Similar issues were recently raised in another US case involving US basketball player LeBron James and the video game publisher who produced the NBA 2K video game. Mr James' appearance, including his tattoos, had been reproduced on his avatar in the video game; it was alleged that such reproduction amounted to infringement of the copyright in the tattoo. The court concluded that Mr James enjoyed the right to licence his appearance, including his tattoo, but suggested that reproduction of the tattoo was so minimal as to not amount to copyright infringement.
It remains to be seen how the courts will move forward in addressing the legal rights associated with tattoos, particularly those adorned by celebrities whose appearance is frequently licensed commercially. The commercial use of images reproducing such distinctive tattoos may amount to copyright infringement, and may also be perceived as false endorsement leading to potential liability under the UK law of passing off. We therefore recommend that specialist legal advice is sought before reproducing photographs of individuals with distinctive tattoos, to ensure that such reproduction does not amount to copyright infringement or passing off.
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