For centuries, the human race has shown an affinity for body art, often capturing works of art onto the human “canvas.” From tribesmen to notable celebrities today, tattoos have persisted in culture as a personal identifier. Skin art has, of course, become an obsession of contemporary pro athletes in the NFL, boxing, UFC, soccer, and basketball. As they have taken even stronger and wider hold in pop culture, tattoos have become a focus of entertainment and sports industry insiders and legal departments needing to clear rights for creative projects.
But can tats get copyright protection? Unfortunately, for Entertainment lawyers who are asked to weigh in on this question, answers are scant in this area of law and the merits of issue appear yet unresolved. As one law firm has posted on its blog, celebrities and public figures may have rights of publicity, which give them certain sway over, “commercial exploitation of their images and likenesses.” But “when tattoos enter the picture, the issue is complicated; currently there is nothing in the U.S. Copyright law that bars tattoo artists from the same right to control and benefit from their art.”
The popular press has explored concerns for companies about jocks, brands, copyright, and tats, suggesting loops and hoops all concerned might need to traverse. The issue has prompted at least one detailed law review article. A case involving boxer Mike Tyson that many thought might provide clarity settled out, instead, though there is a new filing against Take Two, the creators of popular basketball video game series NBA2K. Meantime, athletes, sports leagues, video game makers, and Hollywood studios are proceeding warily. What makes them fret about their skin in the game?
Can skin art be protected?
Copyright protection extends to “original works of authorship fixed in any tangible medium of expression,” which includes literary works; musical works; dramatic works; pantomimes; pictorial, graphic and sculptural works; motion pictures; sound recordings; and architectural works. Tats might appear to fit the definition for protection: They are fixed, original works in a “tangible” medium of expression, even if that mode is the human epidermis.
A San Diego law firm that specializes in entreprenurial clients has posted about skin art and copyright, writing that at, “first glance, it would appear that tattoos should be subject to copyright law. A tattoo is a work of art–a painting, just with a different type of canvas. … Copyright ownership is not the ownership of the material the work is placed on–the canvas, the page, or in this case, the face–but the underlying image itself. On the surface, it seems that a tattoo should be as copyrightable as a painting, but there has never been a court verdict or any other legal ruling concerning whether a copyright on a tattoo can be enforced.”
In the infamous Tyson tat case, the ABA Journal has reported, “it’s increasingly clear that the law also applies to ink on skin.” The Journal quoted U.S. District Judge Catherine D. Perry, who said in a 2011 hearing that, of “course tattoos can be copyrighted. …I don’t think there is any reasonable dispute about that.” The Journal also noted that a “growing body of case law derived from a series of high-profile lawsuits suggests that ultimately it’s the tattoo artist—not the person who bears the tattoo—who owns the rights to that tattoo.”
Or, is it a valid legal argument that, as soon as the ink dries, the wearer of a tat has implied license to it, and the design’s creator loses control, as two law professors (at UCLA and NYU) have posited?
Getting ahead of a concern
Eriq Gardner, whose entertainment law beat for the Hollywood Reporter keeps him immersed in issues of interest to the industry, has written that, even “though there haven’t been any stories of big legal victories by tattoo artists, there’s enough anxiety to keep lawyers imagining the possibilities.”
Pro quarterback Colin Kapernick got himself some bonus publicity when he took the time to secure rights to his many tats, so they could appear in a video game with timely graphic enhancements that would let fans really visualize his skin art.
The NFL players’ group has urged its members to secure rights for their tats from the skin artists who etch them, just in case.
That prophylactic step might be wise, considering the proliferating litigation:
In 2004, EA Games, a video games maker, was sued over a Ricky Williams tattoo that appeared on the cover of the magazine NFL Street. Williams himself also was named by the copyright owner. The case eventually was dismissed.
In 2014, tattoo artist Victor Escobedo sued video game maker THQ for including tattoos of famed UFC fighter Carlos Condit in their game with his distinguishing features and body art without his permission, Forbes reports. The magazine said Escobedo had sought $4.1 million but received $22,500.
Earlier, in 2005, legendary British tat artist Louis Malloy got a lot of tabloid attention by asserting he would sue for nfringement when soccer superstar David Beckham planned to feature Malloy tats in an ad campaign. Also in 2005, skin artist Matthew Reed sued Nike and NBA basketball player Rasheed Wallace over a Reed tattoo featured in a Nike ad. That suit also settled out of court
As for the latest case involving the NBA2K series, some analysts are wary, one writing in Forbes: “Take-Two could be in a pretty tough spot since these are multiple designs across a number of players, and one of them was on the box art for NBA 2K14.”