Copyright and tattoos: where are we now?

From The IPKat:

Copyright and tattoos is one of The IPKat’s favourite topics. Over time a few posts have been devoted to exploring the intricacies of copyright law as applied to this type of works.

. . . .

[T]attoos are artistic works with no particular features, if not the medium they are attached to, ie the human body. From a copyright standpoint, issues might arise in a number of circumstances, including when:

• The owner of the body (clearly a tangible medium) on which the tattoo is affixed is not also the owner of the copyright in the work (the tattoo);
• The tattoo reproduced on someone’s body is an infringing copy of a third-party copyright work.

. . . .

Scenario A – Owner of the body on which the tattoo is affixed is not also the owner of the copyright in the work

This scenario might not appear particularly problematic to the lay person, but it has been causing celebrities and athletes more than an headache over the past few years. Readers will remember for instance the (in)famous case of the Mike Tyson’s face tattoo and the lawsuit that his tattoo artist brought in the US against the producers of The Hangover – Part II over the unauthorized reproduction of that artistic work. The case was eventually settled out of court, but it was sufficient to generate a renewed new awareness around the legal issues potentially affecting tattoos.

This has become true also for sports organizations. For instance, in 2013 Forbes reported that the NFL Players Association (this is the organization that represents professional American football players in the National Football League) had become increasingly concerned about potential copyright claims concerning its members’ tattoos, and started advising agents to tell their players that, when they get tattoos, they should get an assignment from the tattoo artist and, if they can track down their former artists, they should get an assignment as well.

One of the reasons as to why such concerns have started arising is also because athletes routinely license use of their likeness in advertising, merchandising, and important ‘side’ products like videogames. And videogames seem to have become problematic indeed. 

As The IPKat reported back in 2013, videogame publisher THQ was sued by a tattoo artist over the UFC Undisputed games for reproducing, without his permission, the drawing of a lion that he had tattooed on the ribcage of mixed martial fighter Carlos Condit. 

 

Now, a new lawsuit – still concerning videogames and tattoos – is pending before the US District Court for the Southern District of New York against Take Two over its NBA 2K videogame franchise. The owner of copyright in a number of tattoos featured on the bodies of NBA basketball players, including LeBron James, is arguing that it is an infringement of its copyright to reproduce these artworks in the videogame without permission. Also James has weighed in on this issue, summarizing better than any lawyer what the real conflict – besides all legal technicalities – is in a case like this:

 In the fifteen years since I’ve been playing professional basketball, this case is the first time that anyone has suggested to me that I can’t license my likeness without getting the permission of the tattooists who inked my tattoos. No tattooist has ever told me I needed their permission to be shown with my tattoos, even when it was clear I was a public basketball player.

Link to the rest at The IPKat