When you get a tattoo, you probably presume that it’s yours. After all, the design’s inked on your skin, and you paid an artist to put it there. However, the truth is that no matter how personal a body modification may be, tattoo ownership is pretty murky.
Tattoo copyright law entered popular consciousness in 2016 thanks to pending litigation against the makers of NBA 2K, a basketball video game series featuring the digital likenesses of LeBron James and other popular players. The lawsuit alleges that Take Two Interactive Software is infringing on the copyrighted work of tattoo artists, because the game depicts James as he appears in real life, ink and all. The questions at stake are: At what point does a tattoo artist relinquish their right to a design? If a person with visible ink stars in a movie or TV show and makes money off the project, should they pay royalties to the artist? And is a tattoo part of someone’s identity, inseparable from their persona once it’s committed to skin?
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To get some clarity, I talked to Jeremy S. Goldman, a Los Angeles–based copyright, privacy, and entertainment lawyer who recently moderated a panel on tattoos and copyright law for the Copyright Society of the USA. We asked him to break down the nitty-gritty of tattoo copyright law.
This interview has been lightly edited for length and clarity.
VICE: So can you copyright a tattoo?
Jeremy S. Goldman: Copyright separates the physical output of an artist from the right to the art itself. When an artist makes and sells a painting, that gives the person who bought it the right to the art itself, but doesn’t usually give them the right to commercialize it and put it in a movie or commercial or something.
Copyright exists when you have an original work of authorship in a fixed medium of expression. The question becomes, is the human body a fixed medium of expression? There’s no question a canvas or photograph is. Most people think, and at least one court has determined, that the body can be considered a fixed medium. Therefore, tattoos are subject to copyright protection. And since the person who creates the tattoo and puts it on somebody’s body is generally the tattoo artist, that artist, by default, owns the copyright.
So what rights does a tattoo artist have to the ink on a client’s skin?
My opinion as a lawyer, and where I think courts would come out on a lot of this stuff, is that when a tattoo artist gives somebody a tattoo, it is accompanied by a very broad implied license. That’s certainly going to include the rights for that person to appear in public, to presumably appear on television, to go about their life as they would normally live it, and to display their body as their body would otherwise be displayed. I think that’s almost certain. But then the question becomes what about when you make use beyond that? For example, uses where a tattoo is separate from a body. Does the implied license cover that?
So where do things get murky?
A good example is Whitmill vs. Warner Brothers, a case dealing with the plot of The Hangover Part II, where Ed Helms’s character wakes up with Mike Tyson’s tattoo on his face. The tattoo artist for Mike Tyson sued Warner Brothers, and in fact tried to get a preliminary injunction to stop the film from being distributed. The case ended up settling, but before the case was settled, the judge did seem to think that the tattoo artist had a pretty good chance of winning on some sort of copyright infringement claim. This wasn’t a question of Mike Tyson being in the film. This was about using the tattoo—completely detached from Mike Tyson’s skin—and putting it on another person.
In another case, a tattoo artist named Roger Ladouceur sued a restaurant chain in federal court in Virginia over their commercial use of an original-looking Frankenstein tattoo he inked on someone. A picture of the tattoo on the person’s arm was posted on the internet. And then a restaurant chain took that tattoo and used it as a logo for different events, like a Halloween party at the restaurant. It had nothing to do with the tattoo anymore—it was just being used as a logo to promote the restaurant. That case also settled, and I also think that might have been a decent claim by the tattoo artist.
What about the LeBron James case against NBA 2K?
Take Two Interactive Software is being sued by this company Solid Oak Sketches, which is owned by one individual who went around to tattoo artists for athletes and got them to assign whatever rights they have in the tattoos to him. Solid Oak sued Take Two for the unlicensed use of LeBron’s and others’ tattoos on those players’ avatars in the game. Take Two has moved to dismiss the case, and they’ve asserted two arguments as grounds for dismissal. The first argument is that, for most of the game, you barely see the tattoos, and it’s such a small part of the game that it’s called de minimis under law. The second argument, and the more interesting one, is that it’s fair use.
How does fair use come into play?
Under the fair use doctrine of copyright law, one of the main considerations is whether the new use [of the work] is transformative. Take Two is arguing that when a basketball player like LeBron went to get the tattoo, the goal was some sort of self-expression. With the video game, on the other hand, the purpose of recreating the tattoo in the game is to depict what LeBron James looks like in real life. Take Two argues this is transformative and fair use. In response to Take Two’s fair use argument, Solid Oak asks: Did they really need to do that?
In my view it’s a fair question, because on one hand Take Two is claiming the use is de minimis, and you barely see the tattoo. But on the other hand, Take Two is claiming it’s really important that they recreate the tattoo in exact detail. It’s kind of a close call, because we’re not talking about depicting LeBron James with a video camera. The tattoo artist would expect that he’s going to be filmed playing basketball. This is a case where a video game company is recreating him, and they have the option to recreate him however they want. They don’t necessarily need to include the artwork on his skin.
Do people with tattoos have any say? Could LeBron ask to be recreated exactly as he appears, including his tattoos?
I guess that’s the question. Does an implied license extend to being recreated as an avatar, for example? I don’t know. But under traditional concepts of copyright law, that would not be LeBron James’s call.
Let me tell you about one more basketball case that happened. There was a case brought against Nike, their advertising agency, and Rasheed Wallace by a tattoo artist. A Nike commercial came out entirely focused on Rasheed Wallace’s tattoo. It shows his arm without the tattoo, in a voiceover Wallace describes the tattoo, and as he’s talking the tattoo is drawn on his skin before your eyes. They sued Wallace for improperly authorizing Nike and the agency to do that, claiming that he didn’t have the authority to approve the use of the tattoo for commercial purposes and that he was secondarily liable for copyright infringement. That case also settled, presumably in favor of the tattoo artist.
How can someone protect themselves against a suit like this?
A celebrity or an athlete could resolve any of these issues by having a tattoo artist sign a release of intellectual property rights when they make the tattoo. After a lawsuit was brought against EA for putting a photograph of a tattooed Ricky Williams on the cover of NFL Street and Madden NFL 10 and 11, the NFL Players Association put out a recommendation that when players go and get tattoos, they get releases from their tattoo artist. I think savvy celebrities and athletes are now insisting that tattoo artists sign a release.
What precautions should tattoo artists take?
Given the rise of the popularity of tattoos in our culture—they’re way more pervasive, commonplace, and mainstream—as with anything else, as ink becomes more mainstream, legal issues are bound to crop up more and more. Tattoo artists may want to think about spelling out what uses require permission before they’re used. My recommendation would be that tattoo artists think about addressing issues of IP ownership and rights in the forms they already have people sign.
We’re in the age of individual branding. What makes up a celebrity or athlete’s persona carries a really high value. What is that persona made of? It’s someone’s face, likeness, voice, image, name, and their tattoos! So that carries a lot of value. Whenever you have artwork that carries value, there’s going to be litigation and lawsuits.
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