On October 21, 2022, a federal jury in Southern California decided that Cardi B’s use of a tattoo on her album cover did not constitute copyright infringement. This decision was made even though the plaintiff’s tattoo was indisputably used to create the album artwork. While this may appear like just another day in court, the case seemingly flies in the face of a recent tattoo copyright case involving wrestler Randy Orton’s “ink.”

This raises the question of when tattoo designs have intellectual property protection.

Cardi B’s Tattoo Copyright Problem

When Cardi B’s mixtape was released in 2016, it wasn’t long before Kevin Michael Brophy received a text message regarding the album’s cover. On that cover, there’s a man’s back depicted. It’s impossible to see the man’s face, but he has a very distinctive tattoo on his back. It’s a tattoo that is perhaps indistinguishable from the art that Brophy has on his back.

After having his copyright cease and desist letters ignored, Brophy decided to take the music megastar to court. In his lawsuit, Brophy claimed the mixtape album art caused him distress and disruption to his life. He likened his tattoo to a “Michelangelo piece” and said that its presence on Cardi B’s album turned it into something “raunchy and disgusting.” Brophy sought $5 million in damages in his lawsuit.

Like other tattoo copyright cases in the past, however, Brophy was not successful. We saw a similar outcome in a case involving the tattoos of Lebron James featured in a video game back in 2016. Juries have repeatedly held that featuring such tattoos in other media types is fair use. Of course, those cases involved art featured on video game versions of the stars themselves. This makes the Cardi B lawsuit slightly different, but the most perplexing issue involves an unrelated case.

Randy Orton Tattoo Copyright Lawsuit Goes in Different Direction

Federal juries have been relatively consistent in copyright litigation involving original tattoo art. If anything, Kevin Michael Brophy may have had a better leg to stand on since he never agreed to have his artwork featured elsewhere. However, a recent case involving WWE star Randy Orton shows just how fickle federal juries can be.

Just weeks before the verdict came down in Cardi B’s tattoo copyright case, a federal grand jury found in favor of a tattoo artist whose work was featured in a wrestling video game. The artist — Catherine Alexander — performed tattoo work on the wrestler Randy Orton. That work was subsequently featured in a WWE video game on the virtual version of Orton. The game’s rendition of the wrestler was very accurate, and this meant Alexander’s work was fully featured.

Unlike the rulings in the Lebron James and Cardi B cases, however, the federal jury found in favor of Catherine Alexander in her tattoo copyright case. Although they granted her less than $4,000 USD in damages — mostly because the jury didn’t feel the designs increased the game’s profits — the case did set a new precedent that seemed to fly in the face of other cases. The question now becomes, what happens next?

Tattoo Copyright Cases Still in the Air

It’s important to note that the facts of every case discussed here are different. It’s also worth noting that the facts of each case are open to interpretation by the jury. While some may look at Kevin Michael Brophy’s tattoos and find them indistinguishable from the album artwork on Cardi B’s mixtape, the jury decided that there wasn’t enough proof that Brophy’s likeness had been misappropriated.

While this may seem strange since there’s no dispute that Brophy’s tattoos were the basis of the album artwork, the jury might have decided that the works were different enough to avoid a finding of infringement. Since courts seem to be going in different directions on these cases, we can only wait and see what becomes of the next tattoo copyright case. Until that time, tattoo artists and models will have to cross their fingers and hope that litigation isn’t in their future.