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Welcome to “Unscripted,” a blog series that delves deep into the legal intricacies of reality television—a genre that often feels lawless yet is bound by a complex web of laws and regulations. From copyright issues surrounding tattoo art to the legal implications of on-screen conflicts, we will explore the fine print that shapes the reality TV you love (or love to hate). Get ready to pull back the curtain and examine how legal realities shape televised realities, influencing what can and cannot be aired.

Whether you are a casual viewer, an aspiring reality TV star, or a media professional, “Unscripted” will equip you with insights into the often-overlooked legal landscape that governs the world of reality television.

The Visual Copyright Dilemma

Have you ever found yourself engrossed in a reality TV show, only to have your attention momentarily diverted by the sudden blur of ink on someone’s arm? I recently had one of those “Wait, what just happened?” moments while watching Big Brother Season 25. Blue, one of the contestants, has 33 eye-catching tattoos, but curiously, only some of them are blurred out. It is a detail that may seem trivial, but it opens the door to a myriad of questions about copyright laws and their application in reality television.

You might wonder: Why blur some tattoos but not others? Is it an aesthetic choice, or is something more complex at play here? As it turns out, the decision to blur certain tattoos is not arbitrary; it is a precautionary measure rooted in the legal complexities of copyright law. It results from a careful balancing act between artistic expression and legal responsibility.

Blurring tattoos may seem trivial or like unnecessary censorship, but the legal reasoning behind it is deeper and more complex. The issue hinges on copyright law and exemplifies how the law can have unexpected effects in the creative world.

Are Tattoos Intellectual Property?

Most of us associate intellectual property (IP) with tangible works such as paintings, books, movies, and more abstract forms like music compositions. However, the realm of IP is not confined to these categories. Did you know that tattoos—even when on someone else’s body—can be copyrighted, too?

One less commonly discussed but fascinating area where IP law applies is tattoos. The stunning ink design you are wearing could be legally protected, provided it is original and sufficiently creative.

The essence of copyright lies in the concept of “originality” and its creation medium. In order to be eligible for copyright protection, a piece of work must be both original and recorded on a physical medium. Tattoos meet both these criteria. First, they are “original” works of art—each line, dot, and shade reflects the artistic decisions of the tattoo artist. Second, they are “fixed” onto the skin, a tangible medium. Thus, tattoos can be copyrighted just like a painting or sculpture.

Who Owns the Copyright?

In the world of tattoos, the artist generally owns the copyright for their original designs. This is based on US law, which protects “original works of authorship fixed in any tangible medium of expression.” Since tattoos meet this criterion, they can be copyrighted.

When you get inked, you are essentially paying for a license to display the artwork on your body for your lifetime. However, that does not give you carte blanche rights to that design. You cannot, for example, take that artwork, reproduce it on merchandise, and sell it. Nor can you grant permission for that design to be displayed in ways that reach beyond your personal use. While the art can be displayed on your body, you cannot use it for any other purpose, like reproducing it, selling merchandise featuring the design, or appearing on reality TV without permission from the copyright owner.

Case Spotlight: Alexander vs. Take-Two Interactive Software and WWE

To provide a real-world example of the complex interplay between tattoos and copyright law, let us delve into a landmark case: Catherine Alexander vs. Take-Two Interactive Software, Inc., 2K Games, Inc., 2K Sports Inc., Visual Concepts Entertainment, and World Wrestling Entertainment, Inc. (WWE).

Case Overview

A tattoo artist, Catherine Alexander, sued Take-Two Interactive Software and WWE for copyright infringement under US law (17 USC § 501). The lawsuit revolves around Alexander owning valid copyrights for five specific tattoos featured on a WWE wrestler, which were copied by the defendants in their video games.

The court granted Alexander’s motion for partial summary judgment, affirming that she holds valid copyrights for five of the six tattoos in question. In doing so, the court clarified that the defendants are liable for copyright infringement unless they can establish a valid affirmative defense for using the tattoos to reproduce the WWE wrestler.

Affirmative Defenses and Legal Implications

The defendants in this case attempted to rely on three affirmative defenses:

1. Implied License: The claim that the tattooed individual or the WWE had an implied license to use the tattoo in a broader context, including in video games, to represent the tattooed wrestler’s likeness.
2. Fair Use: The claim that their use of copyrighted tattoos is protected under the “fair use” doctrine. This doctrine permits the use of copyrighted material in a limited capacity without the owner’s permission.
3. De Minimis Defense: The claim that their use of the tattoos was so trivial that it should not be considered copyright infringement.

The court was particularly skeptical about the de minimis defense. In its ruling, the court stated that this defense was not viable under the legal precedent of the Seventh Circuit. The court emphasized that the de minimis defense had been used in other circuits to allow the copying of a small and usually insignificant portion of the copyrighted works. In Alexander, however, the tattoos were copied entirely, making the defense not applicable.

What We Can Learn from the Holding

The holding of Alexander was significant for the scope of copyright law, especially regarding tattoos. The court granted Alexander’s motion for partial summary judgment, affirming that she holds valid copyrights for the five specific tattoos in question. This essentially established that the tattoos were legally recognized as copyrighted art.

Additionally, the court found that the defendants had copied Alexander’s copyrighted tattoos without authorization. This meant they were liable for copyright infringement unless they could establish a valid affirmative defense.

The court was not convinced that the above affirmative defenses were viable. Thus, the holding clarified and emphasized that:

1. Tattoos can indeed be copyrighted.
2. The tattoo artist owns the copyright
3. Reproducing copyrighted tattoos in other media (like video games, in this case) without permission is liable to be considered copyright infringement.

It set a legal precedent affirming the IP rights of tattoo artists, which has far-reaching implications for both the tattoo and entertainment industries. Alexander was awarded nearly $4000, showing that small artists are entitled to retribution for using their copyrights but are not necessarily owed portions of the massive profit from the corporate derivative work. The court refused to award further damages for the tattoos’ contribution to the video game’s commercial success.  

Reality TV: A Breeding Ground for Copyright Infringement

Reality TV programs often include diverse individuals, some of whom sport tattoos. When these tattoos are original artworks copyrighted by the artists, producers must tread carefully. The Alexander case is a cautionary tale for media producers and consumers alike, emphasizing the necessity to understand and respect copyright laws in all their complexity.

Reality TV is about capturing ‘reality,’ often including people with tattoos. However, producers must weigh the risks of potentially infringing upon an artist’s copyright. The question they face is whether showcasing a copyrighted tattoo as part of their programming is worth the potential legal hassle. Given the Alexander case, the answer is often a resounding no, unless they are certain they have the right to do so.

Blurring as a Legal Safety Net

Blurring out tattoos on reality TV has thus become a prevalent practice. It acts as a safety net for media producers who do not want to be entangled in legal issues. This ‘blur’ is more than just a visual tool; it is a legal shield that protects the network from costly copyright infringement lawsuits.

This new form of self-censorship aims to pre-empt any legal challenges. Moreover, while it may seem a minor inconvenience or oddity to viewers, it signifies the broadcast industry’s evolving approach to copyright law in light of new precedents.

Blurring tattoos in these instances is a precaution against copyright infringement lawsuits. It is a legal tightrope that producers would rather not walk on, and blurring is their safety net.

Exceptions and Alternatives

While the trend of blurring tattoos on reality TV shows is gaining momentum, it is essential to note that not all tattoos face this fate. There are specific scenarios where tattoos may appear in full glory on the screen. Here is why:

Public Domain:

Tattoos featuring designs or symbols in the public domain generally do not require blurring. Public domain is a category for creative works not protected by copyright or other IP laws, either because the copyright has expired or because they were never eligible for copyright protection in the first place.

For example, basic geometric shapes, traditional symbols like a Celtic knot, or a phrase like “Carpe Diem” may be considered public domain. Since these designs are not copyrighted, they can be shown in broadcasts without raising legal issues.

Permission:

If the production team has secured explicit permission from the tattoo artist to display it, there is usually no need to blur it out. The process usually involves a legal agreement or license, often subject to specific terms and conditions.

This route may be chosen particularly when a tattoo is integral to a storyline or represents something essential about a character or participant in the show. This legal permission protects the broadcaster by confirming that they are not infringing upon anyone’s IP.

Fair Use:

Fair use is a complex legal doctrine. It allows for the limited use of copyrighted material without requiring prior permission. Scenarios where a tattoo might be shown briefly or where the display of the tattoo is transformative and not merely for commercial gain could fall under this category.

However, Fair use is a legal defense, not a preemptive right. This means fair use is a court defense to be used after already being sued. The presiding judge or jury determines Fair use on a case-by-case basis. Therefore, it is a riskier path for media producers, but it is an option sometimes.

The Takeaway

Blurring tattoos on reality TV may seem arbitrary or unnecessary, but it is a fascinating example of how far-reaching copyright laws can be. Understanding these subtleties in the law can only become more critical as we continue to evolve in a society more reliant on visual media and personal expression.

As the line between traditional and unconventional art forms continues to blur, the significance of understanding the multifaceted nature of IP rights—including those that apply to tattoos—only grows stronger. This nuanced understanding is essential for legal professionals, artists, or media producers but for anyone who engages with or appreciates art in various forms.

So, the next time you see a tattoo blurred out on your favorite reality TV show, you will know it is not just about censoring content but also respecting the artist’s IP rights.