Turn on any sporting event and chances are you will see a number of athletes with visible tattoos. Whether a representation of something they care about or a reminder of a regrettable night in their younger days, their tattoos become a part of their bodies. Or do they?
The tattoo artist may actually still own rights to the artwork. Chances are it will never be an issue, but throw that person in the public eye, much like how athletes are, and the artist may have valid points of ownership that he or she may want to enforce. Much like the artwork hanging on your wall, or that book sitting on your desk, copyright law protects the author of such works. Sure, you purchased it, but that does not give you the right to copy it or sell it off as your own work.
Lawsuits that are based on tattoos have been popping up in the last few years. Most notably, the artist who designed Mike Tyson’s face tattoo filed a complaint against Warner Bros. for using a copy of his tattoo on Ed Helms’ character in The Hangover: Part II. That case was settled, but has been followed recently by another lawsuit brought by a UFC fighter’s tattoo artist against a video game publisher, THQ. In that case, the tattoo artist Christopher Escobedo is arguing that his work is clearly visible on a famous fighter for a significant period of time and that he is entitled to royalties from the 4.1 million copies of the game (UFC Undisputed) that have been sold. That case is still playing out in bankruptcy court. Escobedo has demanded $4.16 million in royalties and so far the bankruptcy judge has it valued at $22,500.
Then there are those athletes who use their tattoos as a marketing tool. Take NFL quarterback Colin Kaepernick for example. He took over the starting job ten games into the 2012 season and led his team, the San Francisco 49ers, to the Super Bowl. An amazing athlete that seemed to come out nowhere was often judged not by the results he got on the field, but by the ink that was on his body. Instead of hiding from the criticism, however, Kaepernick, much like he does in a game, ran with it. He has done a good job marketing himself and uses his tattoos as a focal point. GQ magazine even put him on the cover of its September issue with a featured article focusing on his tattoos and his upbringing. He even agreed to film a Yahoo! Fantasy Sports advertisement with him sitting in a tattoo parlor checking out the Yahoo! Fantasy Football app while he’s getting a tattoo.
Does this all mean his tattoo artist can come in and ask for royalties? The answer to that, much like every legal answer you’ll come across, is simply: it depends.
For this analysis, two questions really need to be answered. First, is a tattoo subject to copyright law? Copyright protects “original works of authorship” that are fixed in a tangible form of expression. Clearly a tattoo can qualify as an original work of authorship, and you can’t get much more “tangible” than a person’s skin. The next, and most important, question is: who owns it? A common misconception with copyright law is that just because you pay someone to complete the work, you then retain all rights to it. In instances like these, it is important to obtain a written document transferring all rights to you. Otherwise, the artist may very well retain certain rights and you may simply be granted an implied license for your use.
The statute clearly lays out that copyright in a work initially vests in the author or authors of the work. 17 U.S.C. § 201(a). Does the fact that the tangible medium the art is on is someone else’s skin? It should be interesting to see how some of these cases pan out if they advance further to litigation. In the meantime, it is probably a smart idea for athletes to start bringing some legal documents to the tattoo parlor on their next visit assigning over all rights to the works…just in case.
