Property, intangible

a blog about ownership of intellectual property rights and its licensing

Of Course There is Copyright in Tattoos

From Tattoo Art Inc. website

There is an unpublished decision out of the 4th Circuit that doesn’t cover any new ground legally but is timely, given the recent brouhaha over copyright in tattoos. Unremarkably, because I’m not sure how anyone could think differently, there is no discussion on the copyrightability of tattoos; that is assumed. Instead, the case is about the damages one can accrue for exceeding the scope of a license.

Plaintiff Tattoo Art Inc. licensed books of “flash” to defendant TAT International Ltd. “Flash” is “an original drawing or design of a tattoo printed or drawn on a sheet of paper or a poster and often displayed on the walls of tattoo parlors to give customers design ideas for the tattooist to copy.” Tattoo Art had registered the copyright for the books. TAT was licensed for “the creation and sale of Stencils for the application of airbrush body art” and to “distribute graphic representations (including photographs and/or posters)” of the tattoo flash designs only if it did so “in connection with the sale of Stencils. No other use . . . is granted by this License.” There was a guaranteed minimum royalty of $6,000 annually; TAT only ever paid a few hundred dollars. TAT also changed the coloring of Tattoo Art’s designs and displayed the re-colored images on its website to promote its stencils, removed the copyright notice from the re-colored images, and referred to the re-colored images collectively as its “Original Collection.”

Neither the law nor its application are particularly interesting, which is why the case is unpublished. But the result–the damages–is a lesson for small businesses. The lower court awarded $18,105.48 for breach of contract–ok, manageable–but a whopping $480,000 for copyright infringement, which were both affirmed on appeal.

The two awards were not duplicative; the breach of contract was the unpaid royalties and the copyright infringement was the re-coloring of the displayed images as well as post-termination use of the works:

TAT was given license to use the copyrighted tattoo flash artwork to create stencils and to use copies of the artwork to promote the stencils. The Agreement did not license TAT to edit, modify or alter the copyrighted works it was licensed to display for marketing purposes, and therefore such use constituted copyright infringement. In the post-termination context, TAT’s continued display of the copyrighted works constituted infringement for the additional reason that TAT was contractually required to “immediately cease all sales” of the stencils in light of Tattoo Art’s notice of termination for breach.

The plaintiff elected statutory damages for the 24 copyrights infringed. Although the infringement wasn’t willful enough for enhanced damages, it was willful enough for the court to award damages on the high end of the statutory range, at $20,000 per infringed work. A challenge to the amount under State Farm Mut. Auto. Ins. Co. v. Campbell and BMW of N. Am., Inc. v. Gore went nowhere:

Those cases, however, involve proportionality review of punitive damages awards, not statutory damages awards where Congress has limited the district court’s discretion by establishing a statutory range. TAT is essentially arguing that these awards within the statutory range were constitutionally excessive. This is an unavailing argument. 

(I wonder if Jammie Thomas-Rasset would agree?)

Tattoo Art Inc. v. TAT Int’l LLC, No. 11-2014 (4th Cir. Dec. 10, 2012) (unpublished).

Discussion of Christopher Escobedo v. THQ Inc., 2:12-cv- 02470-JAT, (D. Ariz.) here and here.

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