From Wrestlers to Rappers: Copyright Tattoo Cases

inked on Orton were used without her permission. The companies came back with a defense that it was fair use in order to recreate Orton's image in the games. The jury gave the win to the tattoo artist, but it was like a split decision because the award was for just a fraction of what she wanted. My guest is intellectual property litigator Terrence Ross, a partner Caton Uten Rosenman Terry. I've been hearing about a lot of copyright cases involving

tattoos recently. Is the law in this area settled? No? The intellectual property in tattoos remains very unsettled. Demonstrating that is two recent jury verdicts we have within the last thirty days, one from the Southern District of Illinois captioned Alexander versus Take two Interactive Software, and then another one coming out of Central District, California, which is Los Angeles captioned Brophy versus Almond Sand which apparently is the real

name of Cardi b the Queen of Rap. And both of them came to swet different results and I think demonstrate that there's still need form his mouth fluidity in the intellectual property surrounding tattoos terry. So the fair use defense didn't work for the w w E in this case, that's correct. So this is the famous Take two video game. W w E two K sixteen seventeen eighteen nineteen comes out every year, and starting with the w w E two K sixteen, they were using as one of the

on screen wrestlers, Randy Orton. Randy Orton, for those of you don't follow the w w E, is thirteen time world Champion of the w w E and famous for having his upper body heavily tattooed five distinct tattoos, and of course, to replicate him in the video game, the video game manufacturers had to show him with these tattoos.

And in advance of releasing the first game that Randy was in, which was w W E two K sixteen back in the fall two fifteen, they went to his tattoo artist, a woman by the name of Catherine Alexander, and asked for permission to display these five tattoos on his character in the game, and offered her a license fee and relatively spaw four hundred fifty dollars, and she said no Wara. She said she would never license her

tattoos to anyone. A couple of years go by and she files a lawsuit against the game manufacturer alleging copyright infringement, and low behold, it turns out she did have copyright registrations in each of the tattoos that she had applied to Randy Orton's torso, and the lawsuit went to trial back in September, and a jury found in her favor found that there was a copyright infringement, but the jury award was three thousand, seven fifty dollars, which seems really

low to me, especially if you consider. I don't know if the legal work was on a contingency basis, but the lost of trial. You're right, June, this is a relatively trivial jury award and in my view, represents a

compromise on the part of the jury members. You often see this in civil lawsuits, where there's some dispute within the jury members as to whether or not there should be a finding liability in the first place, and the compromise usually goes something like this, well, okay, we will agree to say that the defendant is liable, and you will agree to say that the damages are going to be very low. And it's a typical jury compromise when the jury doesn't have a consensus. And I'm guessing that's

exactly what happened here, and you're right. Chances are this was on a contingent fee basis. I don't know that for a fact, but that's typically the way these are pursued, and that would represent not enough money to cover the

planets attorneys sees not even come close. I happen to dull the lead attorney for the defense here, and that would have covered only about three hours the first time, So it's very much I think victory for the defendant, but they would probably have preferred not to have to take it to a jury, to have prevailed on summary judgment, which has happened in the past with this particular defendant.

It seems to me like the jury was thinking about, you know, the implications because they found that none of the profits of the game were attributable to the five tattoos. And that makes sense to me, because no one's playing the game to look at the tattoos. I think that's exactly right. I think the jury probably sat there and said to themselves, well, what would have been a reasonable license fee here, instead of looking at what the profitability

of the game was. And it really goes to a different question, which is whether or not this case should ever got to the jury in the first place. The sort of traditional game plan with respect to the defense against copyright and tattoos has been three parts. You argue that there's a fair use, you argue that there's an implied license, and you argue that there's a day minimous use. And your comment really goes towards this day minimous use issue.

You see the tattoos fleetingly. He's one character in the game. It's clearly not contributing that much to the game users enjoyment of the game. It's simply an identifier of one character in the game. And in the past, not that there are a ton of lawsuits on tattoos, but in the past judges, particularly in the the Southern District, New York, have thrown out the copyright and tattoo lawsuits in video games on the grounds of the day minimus youth defense.

They have also been tattoo lawsuits thrown out on the grounds of implied license. And after all, the person gets a tattoo on a body part, they're going to be them leaving the tattoo parlor and walking around in public publicly displaying the tattoo with the people. That's usually the reason they have a tattoo, so as to show off their body art the folks, and the tattoo artist knows that, and yet they're letting them walk around with this tattoo

on them. That has to be an implied license on the part of the tattoo artist to allow this person to publicly display the tattoo. And that's where reasoning has cost tattoo artists in the past. Any chance that even getting to a jury. The big surprise with this lawsuit was that it even got to the jury in the first place. Take to interact, and I've been successful in the past on summary judgment with respect to NBA games.

The NBA players often have tattoos that are displayed in these video games, and they had managed to avoid jury trials and get some re judgment on an applied license or fair use or the minimus us. And here the judge in the Sun Distribute Illinois, which probably doesn't get a lot of copyright law, said no, I'm not granting you some rey judgment. I think there's a factual dispute. We'll let the jury sort it out. And so that

was sort of the unusual thing here. And we'll have to see what happens going forward, whether more and more of these tattoo cases get to a jury. Money let's go now from wrestlers to rappers. Cardibi was sued not over her tats, but over the tattoo on the cover of her mix tape. The full back tattoos of Kevin Trophy showing a tiger fighting a snake, were photoshopped onto the back of the model in this sexually explicit cover and Brophy sued, saying his publicity and privacy rights were violated.

So this is a different twist. Sure, this is a sort of a different approach by the plaintiff. The plaintiff, Mr Brophy was not the tattoo artist, but he had obtained over a period time, a very complex tattoo on his back of a tiger fighting a snake, actually quite artistic. Flash forward a couple of years and Cardie B was about to release her breakthrough album This Is in two thousand six FT, the album that really made her into what she is now, and the album cover was, as

you described, very racy. It involved a sexual act being performed on her by a mail whose back was to the camera. And apparently when they looked at the photo grafts of this photo session for the album cover, Cardi B did not like the back of the model or social test by Trout, and so they photo shopped in this tattoo of Mr Brophy which they had found somewhere online. And there's no dispute that they found his tattoo online and photoshopped it onto the back of the actual model

in this cover. So they used his tattoo. Mr Brophy claims that he was humiliated. He was mortified that he was embarrassed, psychologically traumatized by this cover of a sexual act being out there in the marketplace, and afraid that people, including his kids and friends would think this was him

in real life doing this. And so he brought a lawsuit in federal court in Los Angeles alleging that the use of his tattoo in this album cover was either a misappropriation of his likeness or an invasion of privacy on a sort of false life theory. And that's what this case is different from the case involving the Randy Orton tattoo in that there was no copyright allegation here. June Cardi B had several defenses. She said on the stand, it's not him to me, it doesn't look like his

back at all. The tattoo was modified and the jury sided with her. I'm wondering how much her celebrity had to do with the verdict. Well, you would certainly think so. My past experience in celebrity cases is that there is an influence on the jury. It's not always a positive influence the jury. And there's certain celebrities I think Cardi B is one of them. Taylor Swift, who if they're involved in the case. President the courtroom, I think the jury does sort of slant toward them, so that may

have happened here. Cardie b is very popular, like kids, referred to as the Queen of Wrap, and so I think that there's no way you can't help but do that.

The other thing that happened during the trial is that the attorney for the plaintiff for Mr. Brophy, got into it with her, and the attorney pushed the line a bit, and she pushed back and took great umbrage understand that anyone would claim that somehow their tattoo was responsible for the enormous success of this album and her music, and indeed, she went so far as to paint this is yet another case of a patriarchal society trying to deny that

a woman was able to create something successful in the marketplace. And I think that as much as her public celebrity, was very influential with the jury here. So considering all these verdicts, who has the leverage and negotiations Because the tattoo artist won the Randy Orton case, but the award was, as we've discussed, paltry the issue here, June is that the law is not sufficiently mature, not developed at the appellate level so that litigants know what their rights are

with some certainty. I think at some point the circuit course will say that there is as a matter of law and implied the license here to publicly display the copyrights, and or a demonimous use defense. The fair use defense is hard to make out in all these cases. I

don't think that'll be successful. But if that's the way we come down, that the law is a little bit on the side of the user as opposed to the tattoo artist or in the Brophy case, stuff tattoo, where I think the leverage is really against the tattoo artist. And we certainly see with this one verdict out of the Southern District Illinois that juries just don't think this is worth much, and that will make it a lot easier for the litigants to settle these cases, probably on

the low side. Now, there's another side to this equation, which is when the end user, either CARDI B using this photo for album or video game manufacturer using it in a video game, whether they really want to incur these substantial legal fees that are involved, because even though A two Interactive was only hit by the jury Verdi for fifty dollars, they spent at least a million dollars, probably more on the legal fees, none of which come back to them. Same in the Cardi B case, probably

spent taking this case to trial a million dollars. And it seems to me it would make more sense for the end user of these tattoos in secondary creative works to go to whoever owns the intellectual property rights in the tattoo and negotiate something up front, and four fifty dollars, as we saw in the Alexander case, is not going to get it done, and to offer them, you know, several thousands of dollars, which is certainly a lot less

than the million dollars attorneys fees, and also diminishes risk, which is something that big companies are always looking for. Practically speaking, Let's say one of these companies take too Interactive, can't come to an agreement with the tattoo artist. Isn't it pretty easy for them to obscure the tattoos or change the tattoos enough in the video game that they won't be responsible. Well, that's where this minimust youth defense

comes in and has been successful in the past. That the play here is in motion, you just get a glimpse of that tattoo. So the majority of the game does not involve looking at tattoos or seeing the tattoos, and so it seems like it should be covered by the day men use defense. The problem with the case in the Southern District Illinois is that the Seventh Circuit

has never dealt with the issue of demonimous use. Illinois is part of the Seventh Circuit, which is based in Chicago in the states surrounding Illinois, and they just simply haven't dealt with it, whereas Second Circuit in the Ninth Circuit have and have established pretty strong to unanimous use defenses. And so the district court judge here said, well, they've never decided it, so I'll just let the jury consider whether the facts established it or not. Arguably wrong, but

that's the way it went um. So again, going forward, it just seems like an easy thing for game manufacturer to go to the tattoo artist or the tattoo where and and buy out the rights for a few thousand dollars. I mean, going forward, if there are more of these cases. If the game companies don't learn their lesson, do you think that this will be an area that's more defined

than legally. The curious thing here, June, is that we've not had any of these court cases go up on appeal to circuit courts, so we just don't have appellate law, and tattoos are everywhere. It's different than music. Music cases are where uh New York Second Circuit, uh, Nashville, Detroit six Circuit, Los Angeles Ninth Circuit. So you have well developed law with respect of music cases. Art cases you

see heavily in the Second Circuit New York. Movies, television cases you see heavily in on the West Coast Ninth Circuit. Tattoos are everywhere. I mean tell them just to Illinois. Hown't seen a copyright case there and forever, and so you just can't be sure where the next one is going to come. We do know that there's going to be a trial in one of these NBA video game cases in a Hio in the spring of assuming it doesn't get settled or pushed off, and again that's yet

another court that gets to decide these. So we're just not seeing them brought consistently in one place where one of them gets up to the circuit court, the circuit court renders some law, clarifies the situation, and then we move forward with some certainty. It's just very odd that

the cases have been very diffused, just brought everywhere. And we'll see what happens in this upcoming case where a tattoo artist who inked NBA players including Lebron James and Tristan Thompson, is suing the maker of the video game NBA two K. Thanks so much for your insights as always, Terry. That's intellectual property litigator Terence Ross of Captain Yuchen Rosenman. When a star athlete and a supermodel get divorced, it's

sure to make headlines. Although Tom Brady and Gazelle Bunch and have tried to quell any media frenzy by coming to a quick settlement and issuing corresponding statements on Instagram about their divorce after thirteen years of marriage and two children, and Brady addressed the divorce on his podcast. Obviously, the good news is things that it's a very amicable situation, and I'm really focused on two things and take care of my family and certainly my children, and secondly doing

the best job I can to win football games. So that's what professionals do. You focus at work when it's time to work, and when you come home, you focus on the priorities that are at home, and all you can do is the best you could do. And that's what I'll just continue to do, is as long as I'm working, as long as I'm being a dad. Joining me is divorce attorney Christopher Melcher, a partner Walter Melcher,

and Yodah. Their statements tracked each other, bunching in an Instagram story set with much gratitude for our time together, Tom and I have amicably finalized our divorce, Brady said, we arrived at this decision amicably and with gratitude for the time we spent together there and they both talked about their children, asked the public to respect their privacy. Does that indicate that this was a well worked out divorce? Absolutely. The statements on social media were released by each of

them and around the same time. It wasn't a joint statement, but the statements were very similar and indicate that they have resolved things amicably and that they're going forward, just really as co parents and trying to focus on their kids and let this kind of get behind them. The petition for dissolution of marriage was just three pages. So somewhere else, I take it is the legal document about

how they're splitting things up. Yeah, so they have to file a case in public court to get a divorce, and so that started, which zel filing a petition for dissolution, and then the next step will be to ask the court jointly to enter a judgment of divorce, and that would return them to status a single people and most spouses will then also tell the court what the terms of their settlement are with regard to property and kids

and support. Here, my guess is they will keep that confidential and um not put that in the judgment, so we don't get to see that. Uh, and there will be no orders on it either. It would just be a confidential settlement agreement between the two of them, and no one would put it into a court file unless someone broke the agreement and needed to be enforced. That's

typically how these deals are run. So it seems incredibly quick, but apparently they were negotiating about it and hired lawyers at the beginning of October, so it's taken about a month for them to resolve this. It could have taken even longer than that. The story started to break about the couple having problems, but they may have been experiencing these problem is much earlier and working on a divorce

settlement for quite some time. And for me doing these type of cases, that's the ideal situation is to work all the details out before the public knows of the split, and then um we then announced or the couple announces that they're splitting around the same time as we're announcing

the settlement. So it's possible that they were able to arrange all these details in a month, but my my suspicion is it would have taken much longer than that because there's a lot of complexity when you have that much wealth, and also complexity around how they're going to share time with their kids in a way that's acceptable and best for the children. So to think that they did all that in a month is unlikely. One of the most controversial parts of a divorce is often who'll

get custody of the children. Well, they both said they agreed to join custody, and she said we'll continue co parenting. Do you think it's that's all it says joint custody or there is a lot more about times and places, etcetera in the final agreement. So joint custody is a very broad term which could mean a lot of different things. It certainly does not always mean equal time, and in most cases we parents don't equally share time with their children.

It's it's gonna be very difficult to do that when one or both parents are working a lot, and children also sometimes want to have a home base and they just want to have a place where they're regularly staying, and then they just spend substantial time with the other parents. So here Tom is working a lot and that takes him away from Florida often, so you know, he couldn't have the hands on parenting at least while he's engaged in that work schedule that a parent who works locally

could have. So there's going to have to be some give and take between the couple, And it sounds like they've achieved or worked out out so that um when Tom is away, obviously the kids would be with Gazelle, but then hopefully when Tom is in town that he would have that time to kind of offset it to keep the relationship going. And it might surprise some that Buncheon is worth almost twice as much reportedly according to

Celebrity net Worth as Brady is. What would a prenup cover? Generally, I would anticipate that this couple had a premarital agreement because both of them brought significant wealth into the marriage, and most of these prenups for a couple like this would say that they're each going to keep their own premarital property, and any property that either of them acquires during marriage would be their own, and there might not be any shared property unless they decide to take title

to let's stay at home family residents jointly, than they would make that their joint property. But many times these marriages between two celebs will involve a complete separate estate for each one of them, and I can't imagine that

there would be any spousal supporter alimony here. There could be child support, but again it you know, at these levels of wealth, nobody needs any money, and in a way, that makes it a lot easier to solve these cases because the money is not scarce and we're low asset cases, which most families. You know, it's defined is not having a lot of assets to split maybe a house and

a retirement account. It's very difficult. Those two me are the scariest cases because you know, there's not going to be enough money to go around in that family to maintain the standard of living that they had together. Because they're now living in two households on the same amount of money. Something's got to give, and it's going to be lifestyle. This couple has none of those concerns, So you think that there might actually not even be uh

provision for child support, that's right. I can't imagine that there would be any child support paid here. I mean the law might, you know, technically provide for it, as somebody asked. But usually in these cases, they're just going to go their separate ways. They may have kept all of their assets and income separate to begin with, so there may not have been a lot of mixing, and

there's really no need for any support. I mean, both of these spouses, you know, make tremendous amounts of money, so there's there's no need for reallocating income between the two of them for support purposes. I found this interesting. They have four different houses that they purchased during their marriage. So it's possible that even those weren't purchased jointly, that they might be in one one's name or the other

and not have to be split. I didn't check the title of these things, and many times these are held not even in their own names. They're held usually in an entity that's created by the couple, And so it makes it very difficult sometimes to see who really owns this property. But we will, you know, see a couple purchase a home together, and even though they have separate estates, symbolically they kind of want to feel like this is

our home and not you know, their spouses home. So really, I guess for symbolic reasons, they will oftentimes purchase a home together. But that's about it. And and so there may not be any other shared property here after the divorce the property is split, and money issues we're assuming

there are none. But even though they say that they're going to continue to co parent Mike, problems arise in the future about the custody arrangements anyway, or about out you know, decisions about the children's lives, where they're going to go to school, for example, things like that, Well, in In most divorces, there's going to be some lingering issues involving kids, and that can be disputes over changes of time spent with the children or maybe even a

relocation out of state, or issues of child support. So that's a common feature post judgment of a divorce case. It's unlikely to happen here because of the level of attention that this couple had on their marriage. It was even though they're both famous, it was really surprising to me that there was this much media attention on their split.

And that's one of the reasons why I think that they settled so quickly, because it was just embarrassing and kind of harmful probably to them to have this much attention. So any dispute that they would have going forward would have to be so serious is to justify airing that

out in a public corp proceeding. So I got to imagine that this scrutiny that's inherent here would keep the parents on their best behavior, would keep them in a settlement minded mode, not only to protect their own brand or reputation, but to protect their kids because their children will see all of this and social media and reporting, and it's really embarrassing to those kids, and the dispute would have to warrant putting those kids and themselves through

all of that anguish, and I can't really imagine what that would be. But we have seen, like with Brad Pitt and Angelina and Jolie, having sixtures of litigation and dragging all that through, and it's just really I question how any of that could be worth it. I'm surprised that you're surprised that this divorce got so much attention because he's such a big football star, she's a supermodel.

It seems made for the tabloids to well it is, and you know, they're they're a young, beautiful, successful couple. But you know, hey, this is common. You know every everyday issues here that people get married and it doesn't work out and they get divorced and they move forward. And there was no controversy here. And I guess that's what's surprising me. There were no allegations to misconduct and there was no bizarre behavior, and so you know, why

is it? What is it the interest that we all have in the stories and that that's just a curiosity to me, and I guess I'm desensitized to it. Because I'm working with celebrities in divorce and I know that they're just like the rest of us. They have the same problems that we all do. But they also didn't have the media attention element that none of us face if we're going through divorce. Yeah, Brady mentioned that on the media attention element on his podcast. You've represented a

list celebrities. What's easier in a divorce and what's more difficult than a divorce with a celebrity involved or two celebrities. Well, when you have two celebrity couple you know, are both spouses or celebrities, the media attention on it makes it very difficult to make a deal. Uh, And that that's why most of these folks will do things quietly and

it's very difficult to keep this a secret. But before the breakup is announced, we'll try to work all this stuff out so they can have some space or privacy to do so. When the story breaks and it's it's known that there's a problem in the relationship, then there's intense scrutiny on why they're breaking up. And we have people coming out of the woodwork and making statements or allegations, and that can really disrupt the settlement process and you know,

slow it down. I mean, we're, like I say, they're they're just regular humans here. And so if somebody's coming out and there's some cheating allegations that are now become public, it is very hurtful and difficult for people to emotionally move forward. And so that that's the struggle. I think that makes it hard. The fact that they have a

lot of money. A lot of times people say, oh, it must be so hard to settle those cases or to go to court one because there's so much money, and no, it's actually easier because there's money and they can hire professionals and they can afford to, you know, go through that process where the rest of us, you know, I find it very difficult. So I would just say

it's the media attention. And then my focus and my reminders to clients is that their kids are seeing this, and every child is impacted by their parents divorce and the immediate family and friends are going to know about it. But when you add celebrity parents to the mix, everybody knows about that. And I'm trying to put myself in that child's position and relate that to the parents and let them know like this is out there forever and how difficult that's going to be, and keep the focus

on on their kids. This I think most people who look at this divorce or like this is nothing like me because of the amounts of money involved in the celebrity as we talked about, is there anything that the average person can learn from this split up? So we all can learn from this and and um with celebrities are supposed to be or hopefully role models here and examples.

We haven't seen a lot of good examples lately, but this is one of them where if they're going to break up, and I'm sure they tried very hard to keep the relationship going, but if they're going to break up, to do it in a dignified way, and that there was a lot at stake here in terms of money and kids. But this couple was able to solve this

problem quickly and quietly. And you know, why is it that people who don't have a lot of money will spend pretty much everything they have fighting with each other. And that's what I've seen as a divorce lawyer, is that these problems are all the same. There's more money attached to some of the cases and others. But they're all the same in that their spouses or co parents that aren't getting along, they're breaking up, they have to deal with some financial issues and some kid issues. It's

not rocket science. And why is it that some will settle quickly and others will spend potentially the rest of their life fighting with each other and allowing that to define themselves. So that the takeaway here is it doesn't have to be that way. They can do this, and of course it takes two people to do that, and so I think this is equally reflective and it only could have been accomplished by having two decent, reasonable spouses that put their kids interests in their own joint interests

ahead of any selfish interests that they have. Thanks for being on the show, Chris. That's divorce attorney Christopher Melcher, And that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on

our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast Slash Law, And remember to tune into The Bloomberg Law Show every week night at ten p m. Wall Street time, I'm June Grossow and you're listening to Bloomberg