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Tattoo Copyright Update

Tattoo Copyright Update

Last year, I wrote a blog post titled “Can Tattoos Be Copyrighted?” The issue arose due to a lawsuit between Warner Brothers, the distributors of The Hangover Part II, and S. Victor Whitmill, the artist who created Mike Tyson’s famous facial tattoo. In the movie, Ed Helms’ character wakes up with an identical tattoo. The lawsuit was eventually settled, of course, and the terms of the settlement were not disclosed, of course. But the case brought the issue of tattoo copyrights to the public consciousness. The issue continues to develop, so I felt it was time to revisit the subject and see where we are today. Read on for more information.

Forbes recently reported about Matt Siegler, an account management representative at the consulting firm CEB. Siegler sought out the creators of tattoos found on a number of professional athletes such as Kobe Bryant and LeBron James and obtained licenses “…granting to Siegler an exclusive, worldwide, perpetual, irrevocable and fully sublicensable right in and to the [tattoos.]”

Siegler claims to have plans to exploit those licenses on “clothing, apparel, and other merchandise.” Forbes had previously reported “..that the NFL Players Association labeled copyright ownership of athlete tattoos as a pressing issue and that the Association had advised agents to inform their players that when they get tattoos they should receive a release from the tattoo artist.” Because most celebrities do not receive releases when they obtain tattoos, Siegler, along with tattoo artists like Whitmill, are seeing opportunities – and dollar signs – when those celebrities’ images are exploited in every conceivable form of mass media.

Last year, for example, tattoo artist Christopher Escobedo sued a video game company, THQ, claiming that THQ’s use of MMA fighter Carlos Condit’s image (featuring one of Escobedo’s tattoos) infringed on Escobedo’s copyright in the image. Unfortunately for Escobedo, THQ subsequently went bankrupt, and the bankruptcy court handling the liquidation has not shown an inclination to be particularly generous towards Escobedo’s claim.

In my blog post last year, I talked about some of the basic copyright principles involved in this topic. Generally speaking, my sense is that there is nothing in copyright law that would prevent a drawing that appears in tattoo form from enjoying the same copyright status as a work in any other medium – particularly when, as is common with tattoos, the work is drawn on paper and then copied onto the recipient’s skin. Once an artist sits down and commits an original drawing to paper, that work is subject to copyright protection. It seems absurd that this protection would be erased when, at some later time, a copy of the work is created in the form of a tattoo – whether that later time is 5 minutes later or 5 years later. However, the rights embodied in the copyright have to be balanced with the tattoo owner’s rights to control and exploit his or her own image, and with fair use considerations. This is where the Siegler example gets interesting. Celebrities like LeBron James and Kobe Bryant undoubtedly enjoy rights of publicity in their own images, and it’s arguable that Siegler would be violating those rights by creating merchandise featuring tattoos found on their skin – even if he was acting within his rights as the licensee to the copyright holder (in this case, the tattoo artist).

To make things even more complicated, copyright law is exclusively federal, meaning that copyright law is identical from state to state (OK, I should qualify this by saying that the different Federal circuits  disagree on some relevant points of copyright law, but let’s leave that alone for the moment), whereas the right of publicity is based in state law, so the right of publicity enjoyed by a celebrity residing in California may be very different from the rights enjoyed by a celebrity residing in Florida. I hope Siegler has adequate reserves to defend himself against the claims he may be facing should he move forward with this plan.

All of this brings up a few more points that are worth considering:

What’s the Solution?

Every article I’ve read seems to come up with the same brilliant answer: if you’re a celebrity, make sure there is documentation showing that you own the tattoo that you’re about to receive. Easy enough, right? But what if you’re an 18-year-old when you get a tattoo, and you become a celebrity unexpectedly at 25? Are you entitled to fewer rights of publicity than someone who was a celebrity from birth? I’ve never seen any suggestion along those lines.

Sure, maybe our newly-famous 25 year old can go back to the original tattoo artist – if he or she can even be remembered and found – and attempt to negotiate a release of some sort. But that’s a different situation.

What about the flip side – I’ve seen several argument saying, in effect, that the tattoo artist who works on Mike Tyson or Kobe Bryant knows that his or her art is going to be used in a commercial fashion. Let’s assume that creates an implied waiver of copyright claims. Does the same reasoning apply when you’re tattooing an unknown, private citizen? Are you waiving your copyright if – and only if – that person becomes famous? I don’t pretend to have all of the answers, but I’m not sure that all of these issues have been thought through in any source that I’ve come across.

I Am a Celebrity (or an Aspiring Celebrity) Who’s About to Get a Tattoo – What Type of Document Do I Need?

Speaking very generally, there are three types of documents to consider here:

  1. A work-made-for-hire agreement signed by you and the artist prior to the creation of the original work (the drawing, whether it’s on paper or it exists in its first incarnation on your skin.)*
  2. An assignment of all copyright in the work.
  3. A license to use the work, but which does not transfer the underlying copyright (this seems to be what Siegler obtained).

So what would I recommend? A combination of #1 and #2. Get a document stating that this is a work-made-for-hire, but if, for any reason, it’s found not to be a work-made-for-hire, the artist is irrevocably assigning you all right and interest in and to the work. If that’s not possible, consider #3.

Summing Up

None of the tattoo copyright cases that I’m aware of have reached an actual court judgment on the merits of these issues, but I’m certain it will happen sooner or later. There’s just too much money at stake. Until then, whether you’re the artist or the proud bearer of ink, get the deal in writing beforehand, if at all possible.

* Note – these types of agreements have certain formatting requirements. Don’t ever assume that because you and your tattoo artist scribbled something down saying “I own this tattoo” and you both signed it, that will be effective to resolve the copyright issues. Consult a qualified legal advisor.

Thanks to Matt Rinkey for tipping me off to the recent Forbes article that inspired this blog post.

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