Copyrights & Tattoos : Who Owns What?
U.S. copyright law originates from the Constitution, specifically Article I, Section 8, Clause 8 which states a purpose “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The Constitution’s language serves as the baseline for all copyright law in the U.S, even so, copyright laws have continuously changed over time. As of today, the Copyright Act of 1976 is the statute in place that outlines what subject matter is copyrightable, what rights are attributable to copyrights, who owns the copyright and provides the overall scope for copyright protection. Specifically, Section 102 (a) states, “copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known, or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”
Section 106 of the Copyright Act of 1976 enumerates the specific exclusive rights that copyright holders have in their work. Copyright owners have the exclusive authority to reproduce, distribute, display, and create derivatives of their copyrighted work.
Section 201 of the Copyright Act of 1976 discusses who owns a copyright and distinguishes ownership of the copyright and ownership of the work. Section 201 of the Act states that “copyright in a work protected under this title vests in the author or authors of the work. There is a significant exception to section 201 however, that is a work “made for hire”. Works “made for hire” are works that “the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.”
Further, Section 202 (d) states, “any of the exclusive rights comprised in a copyright, including any subdivision of any of the rights specified by section 106, may be transferred as provided by clause (1) and owned separately. The owner of any particular exclusive right is entitled, to the extent of that right, to all of the protection and remedies accorded to the copyright owner by this title.” For example, a copyright holder can license the right to reproduce their protected artwork, exclusively or nonexclusively, while retaining the other rights that are attributable to copyright holders. This allows the owner of a copyright to profit off their work while also retaining master of their work.
While copyright law is the source of protection, another body of law that is important to remember when analyzing the unique problems that arise when protecting tattoos with copyright law, is the state law right of publicity. Though the law is different in each state that it exists, generally, “the right of publicity prevents the unauthorized commercial use of an individual's name, likeness, or other recognizable aspects of one's persona. It gives an individual the exclusive right to license the use of their identity for commercial promotion.” Entertainment pivots such as Los Angeles, New York City, Miami and Las Vegas all lie within states that have enacted some variation of the right of publicity, whether statutory or by common law. New York and California have the most developed and detailed body of law in regards to publicity rights. New York’s statute reads, “a person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.” Thus, in conjunction with the laws of copyright there is a natural tension between the right of publicity and copyright because tattoos though created by an artist, are inked on the body of another human being. Nevertheless, celebrities, athletes and entertainers seem to be the target of the tension between these laws and the narrow body of case law is indicative of this.
The first case to address copyright law and tattoos involved NBA player Rasheed Wallace, Nike, and a tattoo artist. Reed, the tattoo artist, was consulted by Wallace in hopes of getting a tattoo. Wallace paid Reed $450 for the tattoo however neither party presented a contract of assignment that detailed the ownership of the intellectual property being transferred. At that time, Rasheed Wallace played for the Detroit Pistons, who were in the midst of a successful championship crusade. During this crusade, Nike made a commercial focusing on Rasheed Wallace’s tattoos including the one that Reed created for Wallace. The commercial at one point focuses fully on the tattoo, with it filling the screen and then shows the tattoo being created by a computerized simulation.
Reed sued Nike, Rasheed Wallace and the commercial advertising agency claiming that they copied his work by digitally recreating the tattoo in the commercial. This case was settled out of court but marked the first instance in which tattoos and copyright law intertwined in the courts. This case also serves as the foundation for the cases that follow because in all of the following cases, the big corporation chose to settle out of court instead of allowing a court to decide on this issue.
In 2010, the Allen v. Electronic Arts Inc. case also involved a famous professional athlete. Former Miami Dolphins running back Ricky Williams was featured on the cover of an assortment of EA Sports games including NFL Street, Madden 2010 and Madden 201l. On the cover of these games featured tattoos that an artist designed for Williams on his right and left arm, however the artist was not notified that the tattoos were going to be displayed on the games. The tattoo artist sued Electronic Arts for copying, reproducing, distributing, making an unauthorized derivative work, and publicly displaying the copyrighted work. Like the other cases, the parties decided to settle the disagreement outside court.
The case that followed a year later, has garnered the most attention from scholars and the public alike. In 2011, a tattoo artist named, Whitmill, sued Warner Bros. Entertainment Inc. because of a commercial and the overall promotion for the second film in the entertainment company’s hit film series, The Hangover. A trailer for the movie released and featured a scene in which Mike Tyson’s famous tribal tattoo was inked on the face of another character in the movie. Whitmill, unlike many tattoo artists, made Mike Tyson sign a release form acknowledging “that all artwork, sketches and drawings related to his tattoo and any photographs of his tattoo” were to remain that of Whitmills. The lawsuit alleged that the tattoo in the movie was a reproduction of the tattoo that Whitmill inked on Tyson and that Warner Bros. had not sought permission to use the design. Warner Bros. spent millions promoting the film however Whitmill sought an injunction to stop the film from releasing. Judge Perry denied this motion but the judge went as far to say that Whitmill had a “strong likelihood of prevailing on the merits for copyright infringement". Judge Perry also stated:
“Of course, tattoos can be copyrighted. I don’t think there is any reasonable dispute about that. They are not copyrighting Mr. Tyson’s face, or restricting Mr. Tyson’s use of his own face, as the defendant argues, or saying that someone who has a tattoo can’t remove the tattoo or change it, but the tattoo itself and the design itself can be copyrighted, and I think it’s entirely consistent with the copyright law.”
Although the case was not decided on its merits it reaffirmed that copyrights in tattoos exist and that any fair use argument was going to have to be strong to prevail. Unsurprisingly, the case was settled out of court, most likely because Warner Bros. might have actually infringed and they did not want to stop the momentum of the movie with bad press. Nonetheless, the statements made by Judge Perry and the popularity of this case put added emphasis on the intersection of tension between tattoos, copyright law and the entertainment world.
In 2013, the tattoo versus copyright law battle shifted to video game once again. Carlos Condit, a prominent UFC fighter, went to Arizona tattoo artist Christopher Escobedo for a tattoo that was eventually inked on Condit’s ribcage. THQ is a video game company, that created a video game titled, UFC Undisputed 2010 and released a sequel in February 2012 titled, UFC Undisputed 3. The video game is based off the Ultimate Fighting Championship series and Condit was a playable character in both video games. Condit’s character in the game also featured the tattoo that Escobedo created. Escobedo sued THQ for infringing on his exclusive rights under 17 U.S.C § 106, specifically that THQ directly copied his tattoo design, distributed it to a large population, and put it on display.
The parties eventually settled the dispute out of court but this case involved a significant piece of information that bodes well for artists seeking protection from copyright law. In the Escobedo case, the US Copyright Office granted registration of the lion tattoo that Escobedo created, signifying that tattoo artists could protect and enforce their designs a bit easier. If the US Copyright Office grants registration that a valid copyright exists, attorneys for tattoo artists would only have to prove the other elements of an infringement case.
Where We Are Now?
The case most likely able to provide answers is a case, Solid Oak Sketches LLC v. Visual Concepts LLC et al, U.S. District Court, Southern District of New York, No. 16-00724., involving current and former NBA players as well as the interactive design company, Take-Two, responsible for the extremely popular NBA 2K series. The Take-Two produced video game, NBA 2K16, sold more than 4 million copies in its first week of its release. Their counterpart in the suit is Solid Oak Sketches, a company that claims ownership to the copyright of tattoos that are inked on the bodies of current and former NBA stars LeBron James, Kobe Bryant, DeAndre Jordan and others. Here, five copyrighted tattoos created by tattoo inkers Tommy Ray Cornett, Shawn Rome, and Justin Wright, that are inked on the bodies of three players in the National Basketball Association (‘NBA’), Eric Bledsoe, LeBron James, and Kenyon Martin , are up for infringement dispute. The basis of their claim is that the videogame NBA 2K16 uses unauthorized reproductions of their tattoo designs when they recreate the players digitally and include their tattoos. Like the other plaintiffs before them, Solid Oak Sketches, on behalf of tattoo artists, is looking to copyright law to protect their drawings and designs from being exploited without compensation in return. In addition, this pending lawsuit is indicative of the licensing approval that athletes, entertainers, and celebrities will now seek from tattoo artists.
In another copyright law case, filed on December 18, 2017, Hayden v. 2K Games, Inc. et al, tattoo artist James Hayden is suing Take-Two and 2K Games for copyright infringement. Here, the tattoo artist has alleged that Take-Two and 2K Games have recreated six of Hayden's federally copyrighted tattoos on the bodies of NBA players LeBron James, Danny Green, Tristan Thompson, and Kyrie Irving, in NBA 2K16 and NBA 2K17.
Plaintiff, Hayden, has asserted that Take-Two and 2K Games’ unauthorized reproduction, distribution, and creation of derivative works of Hayden's federally registered and copyrighted designs violates the Copyright Act.
Additionally, the NBA has notified Cleveland Cavaliers guard J.R. Smith that he could face a fine for each game he fails to cover-up a new tattoo on his right leg. J.R. Smith’s new tattoo is featured on the back of his right leg displaying the company logo, Supreme, which is a prominent American clothing brand. JR Smith’s tattoo nonetheless seems to conflict with the National Basketball Players’ Association. Article XXXVII states:
Other than as may be incorporated into his Uniform and the manufacturer’s identification incorporated into his Sneakers, a player may not, during any NBA game, display any commercial, promotional, or charitable name, mark, logo or other identification, including but not limited to on his body, in his hair, or otherwise.
Celebrities, entertainers and athletes have an opportunity to capitalize on their likeness in ways that the average person will never get a chance to. The most important rights would be the right to display and the right of reproduction. As evidenced in the undecided case law, tattoo artists want control over their tattoos after they have inked them on the bodies of individuals. While they still own the copyright even when it is inked on another’s body, the license that tattoo artists prescribe should enumerate precisely that the recipient of their tattoo can display the tattoo but can’t grant reproduction of the tattoo in another medium without permission. If a person wants non-restricting reproduction rights, tattoo artists will be able to command a sizable fee. Another alternative would be work for hire arrangements in which tattoo artists would create copyrightable work but forfeit rights to the design on completion of the ink. In this scenario, tattoo artists would also likely be able to command a higher price for the tattoo and its accompanied copyright. On the contrary, individuals would like to control the right to reproduce or recreate themselves in different mediums without undue burden. They will look to purchase, in advance, all of the rights associated in a copyright (work for hire or assignment), or at the very least seek a waiver that allows them to exploit their likeness freely without fear of lawsuit.
Waivers provide courts the answers as opposed to the courts having to decide on infringement with a blank canvas. The most certain thing that will come from the attention that is being given to copyright law and tattoos, is the addition of a stronger contractual relationship between the tattoo artist and the recipient. Once stronger waivers are involved, courts will able to use contract law for consistency to solve some of the more traditional issues involved with copyrighting tattoos.
As copyright law begins to protect tattoos, the most important question for tattoo artists and the tattoo recipients is, what effect will stronger regulation have on the tattoo industry? For tattoo artists, in boutiques or large studios, they will need attorneys to provide contracts and guidance to navigate and foresee potential issues. Thus, if you are a tattoo artist it is imperative that you apply to the US Copyright Office for registration of your design so that you can possibly reap the benefits of statutory damages. In addition, tattoo artists now have to be weary of copyright law backfiring against them. If copyright law is going to apply to tattoos, then artists have to make sure they are not copying other people’s designs for profit. For example, imagine if a person requests a tattoo of the Supreme logo on the back of his right leg, like JR Smith. Does an artist have to seek clearance from Supreme? What if a person wanted the Supreme logo but instead of the traditional “S” they wanted a dollar sign in its place, would this be a derivative work?
It is highly unlikely that courts and corporations are going to allow tattoo artists to be the only party to reap the benefits from copyright law. In theory, tattoo artists will likely be able to charge more for their tattoos to recoup for expenses such as legal fees, registration costs associated with copyright, and the added value that their design may hold. However, it is crucial to note that copyrights require work to be original, have to be created by the author and for derivative works you need permission. Thus, if tattoo artists want to register their tattoos under copyright law they must go through the proper channels to clear their respective designs.
The idea of copyright law protecting tattoos is a unique concept that has found substantial support and is undoubtedly the future whether we like it or not. Nonetheless, tattoo artists have opened an assortment of problems that won’t allow them to simply create more revenue. For every bit of added protection that has been added, the reverse is that the protection will also require more sophistication and regulation on the part of the tattoo artist.
Regardless, courts will be asked to balance interests between the rights of tattoo artists and the tattoo recipients in a way that will not allow people to unfairly profit from copyright law or use other people’s tattoo designs without permission. If a court rules adversely against the companies that have been affected by lawsuits, this could set off a chain reaction. It would not be surprising to see film studios, video game makers, television producers and print publications simply dilute tattoos to avoid infringement therefore the revenue stream that was originally targeted wouldn’t even be present.
Irrespective of whether the advantages and disadvantages were contemplated, copyright law will be making its way to the tattoo industry.