Cynthia Zhang is a 3L JD Candidate at Osgoode Hall Law School.

Recently in , a jury of the US District Court of the Southern District of Illinois that tattoo artist Catherine Alexander has a valid copyright claim in the designs she tattooed on World Wrestling Entertainment Inc. megastar Randy Orton. Orton’s likeness was licensed through defendant WWE to defendant Take-Two Interactive Software, a video game publisher. Since 2005, Take-Two has owned the that produces the popular WWE 2K series of pro wrestling sports simulation video games. Interestingly, the jury only awarded plaintiff Alexander $3750 USD in damages. This is a far cry from the revenues earned on the WWE 2K games, which have sold . This development has led legal commentators to observe that, unfortunately, the copyright law surrounding celebrity tattoos .

Copyright protection over tattoos has been a hot topic for some time. IPilogue writers have previously discussed the Kat Von D and the NBA 2K , the latter having also featured Take-Two as defendant. Some tattoo artists may see copyright protection and the ability to raise an infringement claim as a just outcome or a validation of their art. However, numerous considerations give pause for thought when it comes to copyright and tattoos.

An oft-deliberated concern is that the medium of tattoos is a human body. This discussion raises questions of personal agency and asks how an artist can have ownership over their client’s body, even though it’s how their work is physically fixed. Another important factor that’s less often discussed is how increasing copyright protection will affect the tattoo industry itself. Tattoo artists currently benefit greatly from lax copyright enforcement – popular subject matter for tattoos includes famous artworks, celebrity portraits, and quotes from books and movies. As seen in the Kat Von D case, treating tattoos identically to other artworks can open the door for claims in the opposite direction as well. Furthermore, many popular tattoo designs are very similar to one another and can be virtually indistinguishable from one artist’s execution to the next. Take Orton’s tattoos that were the subject of debate in the Alexander case, for example. They were as “tribal tattoos, skulls, a bible verse, and a dove and rose”. All these elements have been common building blocks of tattooing since the early days of the industry. Their combined application on Orton’s body may be technically unique but is certainly not groundbreaking. Indeed, copyright vests in any original work – but are these common types of tattoos original enough?

If copyright protection of tattoos becomes more rigorous, celebrities will likely circumvent the issue by always demanding a contractual assignment of rights before getting tattooed. The tattoo process could follow the model of other commissioned work, such as logo design. For now, the law is still hazy. Alexander has shown that even a successful claim of infringement in such cases may not be worth the effort for a tattoo artist.

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Cynthia Zhang is a 3L JD Candidate at Osgoode Hall Law School. This article was written as a requirement for Prof. Pina D’Agostino’s IP Intensive Program.

As a student of Osgoode’s Intellectual Property Law and Technology Intensive for the Fall 2022 semester, I had the opportunity to complete an internship placement at Ontario’s public educational broadcaster, TVO. Most people who, like me, grew up in Ontario in the 90s-2000s likely consider after school snacks and a core memory. Besides its classic properties like Polkaroo and Today’s Special, TVO also produces The Agenda, a current affairs daily, and offers accredited educational services and products. I was a member of the Legal Services and Business Affairs team under the supervision of Patricia Cavalhier, Director of Legal Services at TVO.

I was pleased to be able to attend onsite two days each week. Besides TVO offices, the building at 2180 Yonge also houses TVO’s studios, editing and content production facilities. I tagged along on a site tour with a group of new hires and was able to see some archival sets and props, the costume department, editing studios, as well as the sets of The Agenda and other TVO in-house productions. The industry-specific ecosystem is one notable difference between a role as in-house counsel versus a practitioner in a law firm.

By far the most engaging project I worked on during my placement was the publication of a set of official marks for TVO. I was fortunate to have begun my internship at the same time as the rollout of an organizational rebrand. This resulted in new logo designs and new programming branding, all of which needed to be protected via a trademark-related process. Official marks are a system unique to Canada and operate pursuant to section 9(1)(n)(iii) of the Trademarks Act, RSC 1985, c T-13. They are “published” by the Registrar of Trademarks as opposed to being “registered” like trademarks. They can only be owned by a public authority, an organization under substantial government control that provides a public benefit, such as TVO. The actual process of publishing official marks is very different to obtaining registration of a trademark. I was surprised to find that the feat could be accomplished simply by sending a one-page request form to the Canadian Intellectual Property Office (CIPO). This would then need to be followed up with proof of public authority and proof of use or public display of the mark itself.

Additionally, I discovered that it was quite easy to speak with a trademark examiner at CIPO to receive advice on section 9 procedure. I was able to interact with the examiner via both email and phone, and he was very accessible and willing to help on multiple occasions. Having worked in an accounting setting which involved constant interaction with CRA, this level of approachability from a government entity came as a shock to me.

Prior to law school, I worked in an entertainment context in various capacities but without experience in broadcast media. My placement at TVO taught me how such an organization functions internally. I spent time with acquisitions officers and understood their day-to-day processes, including how licensing agreements are generated and negotiated, something which I had only experienced from the opposite party’s perspective during my summer law student roles. I was also interested to learn of some unique considerations for this type of broadcaster, including stringent compliance with Canadian Media Fund requirements regarding fund allocation, programming characteristics, and diversity and inclusion.

Toward the end of my placement, I found it gratifying to be able to design a “best practices” guideline for TVO’s content team regarding IP considerations and social media. I learned that although content production staff generally understands the wide strokes of copyright and trademark, they can still easily get caught up on nuances which could result in a claim of infringement or similar. I was able to compose a guideline that provided points to be mindful of and specific advice on use of Creative Commons licensed content, including careful attribution. I left feeling as if I had contributed concretely to the operation of the organization, at least in this small way.

My internship at TVO gave me beneficial insight into the daily life of in-house counsel as well as how a broadcast media organization operates in the changing media landscape today. It is clear that TVO is embracing and exploring different avenues for the future of their business, as is evident from their recent partnerships with popular brands like and the . I am grateful to Professor Pina D’Agostino and my supervisor for making this experience happen.

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Cynthia Zhang is an IP Intensive Student and a 3L JD Candidate at Osgoode Hall Law School.

American gaming company Wizards of the Coast (“WOTC”), a subsidiary of Hasbro, is perhaps best known for publishing Dungeons & Dragons {“D&D”), the tabletop role-playing game that has brought barbarians, beholders and basilisks to life for nearly five decades. Of course, D&D isn’t the only property that WOTC has acquired since its inception. Recently, the company has been over Star Frontiers: New Genesis, a proposed reimagining of a sci-fi tabletop RPG originally published in the 1980s. After a test copy of New Genesis was leaked online, WOTC took issue with development company TSR LLC’s use of their IP rights in the game. This is an interesting example of how intellectual property law can be utilized to smother the proliferation of harmful views. The context surrounding the litigation shows that protecting business interests is not trademark law’s sole function.��

Gaming enthusiasts were disturbed by the leaked game’s . The disclosure of this content follows an established record of publicly expressed homophobic, transphobic and racist views from the owners of TSR LLC.��

In light of this controversy, WOTC has filed a against TSR LLC to prevent publication and distribution of New Genesis. The company argues that since the game uses trademarks belonging to it, having WOTC associated with such “reprehensible content” will damage WOTC’s reputation, goodwill, and undermine the cause of embracing diversity in fantasy gaming. This motion represents the latest development in the greater claim and counterclaim between the two companies which was initiated in .��

TSR LLC’s position is that they are entitled to own and use both the word marks “TSR” (the name of the original company that published the first iteration of D&D) and “Star Frontiers”, since WOTC allowed registration in these marks to lapse in the 2000s. For its part, WOTC claims that it retains common law interest in these marks, on the basis that it has continued to use the marks since at least 2012. Since then, WOTC has licensed the marks to another company which sells older editions of both D&D and the original Star Frontiers. In its injunction motion, WOTC considers criteria based on the under US law. WOTC asserts that TSR LLC cannot register the marks in question because of factors such as proximity of goods, similarity of the marks, marketing channel convergence, and ultimately, consumer confusion.

In support of its injunction request, WOTC claims that it will suffer irreparable harm if New Genesis is released. WOTC states that it has built up significant goodwill in the marks at issue, which will be negatively affected by being associated with the views expressed in New Genesis. Moreover, WOTC notes that it has taken efforts to in its products, a directive which is squarely at odds with the apparent sentiments of TSR LLC.��

Compared to other practice areas, trademark law is often seen as purely a business mechanism. Because of how it functions, it can be easy to conclude that trademark law isn’t directly relevant to the cause of justice or societal progress. However, a proceeding like that between WOTC and TSR LLC can suggest otherwise. Forwarding more abstract values can indeed be accomplished through trademark law as well, and it doesn’t take a wizard or a warrior to do so. We will be following the outcome of this dispute as litigation continues.

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