Copyright and tattoos: where are we now?

LeBron James's avatar in NBA 2K18

Copyright and tattoos is one of The IPKat’s favourite topics. Over time a few posts have been devoted to exploring the intricacies of copyright law as applied to this type of works: see, eg here,  here, here, here, here, here, here. However, as Jeremy recalled - despite all this interest - The IPKat sports no tattoos, not least because of the mess it would make of the fur.

Having said so, tattoos are artistic works with no particular features, if not the medium they are attached to, ie the human body. From a copyright standpoint, issues might arise in a number of circumstances, including when:

• The owner of the body (clearly a tangible medium) on which the tattoo is affixed is not also the owner of the copyright in the work (the tattoo);
• The tattoo reproduced on someone's body is an infringing copy of a third-party copyright work.

While the former scenario has been already subject to litigation - whether concluded with a judgment  [eg in Belgium] or settled out of court - the latter, as far as I am aware [but please let me know if it is otherwise!], has not yet been fully litigated. 

Let's see a bit more in detail what the issues for these two scenarios might be.

Scenario A - Owner of the body on which the tattoo is affixed is not also the owner of the copyright in the work

This scenario might not appear particularly problematic to the lay person, but it has been causing celebrities and athletes more than an headache over the past few years. Readers will remember for instance the (in)famous case of the Mike Tyson's face tattoo and the lawsuit that his tattoo artist brought in the US against the producers of The Hangover - Part II over the unauthorized reproduction of that artistic work. The case was eventually settled out of court, but it was sufficient to generate a renewed new awareness around the legal issues potentially affecting tattoos. 

This has become true also for sports organizations. For instance, in 2013 Forbes reported that the NFL Players Association (this is the organization that represents professional American football players in the National Football League) had become increasingly concerned about potential copyright claims concerning its members' tattoos, and started advising agents to tell their players that, when they get tattoos, they should get an assignment from the tattoo artist and, if they can track down their former artists, they should get an assignment as well.

Mike Tyson (L) and 
Stu in The Hangover - Part II (R)

One of the reasons as to why such concerns have started arising is also because athletes routinely license use of their likeness in advertising, merchandising, and important 'side' products like videogames. And videogames seem to have become problematic indeed. 

As The IPKat reported back in 2013, videogame publisher THQ was sued by a tattoo artist over the UFC Undisputed games for reproducing, without his permission, the drawing of a lion that he had tattooed on the ribcage of mixed martial fighter Carlos Condit. 

Now, a new lawsuit - still concerning videogames and tattoos - is pending before the US District Court for the Southern District of New York against Take Two over its NBA 2K videogame franchise. The owner of copyright in a number of tattoos featured on the bodies of NBA basketball players, including LeBron James, is arguing that it is an infringement of its copyright to reproduce these artworks in the videogame without permission. Also James has weighed in on this issue, summarizing better than any lawyer what the real conflict - besides all legal technicalities - is in a case like this:

In the fifteen years since I've been playing professional basketball, this case is the first time that anyone has suggested to me that I can't license my likeness without getting the permission of the tattooists who inked my tattoos. No tattooist has ever told me I needed their permission to be shown with my tattoos, even when it was clear I was a public basketball player.

He added:

Each of my tattoos was created to showcase parts of my life and things that are important to me. ... My tattoos are a part of my persona and identity; if I am not shown with my tattoos, it wouldn't really be a depiction of me.

So, which one should prevail, copyright protection (for the owner of copyright in the tattoo) or the right of the person whose body carries the tattoo to decide how their image and likeness are to be presented and used, this being - it is arguable - also a form of self-determination and exercise of one's own freedom of expression? 

Neither right - copyright and publicity/image - is absolute. With regard to the latter, readers may for instance recall the interesting decision in the Olivia de Havilland case [reported here]. With regard to copyright, fair use under §107 of the US Copyright Act is a central doctrine that sets limitations to the scope of a copyright holder's control [see also here]. 

Overall, if one was to set a balance, it would appear that what is being reproduced in, say, a videogame, is not the tattoos on LeBron James's body as such, but rather the likeness of LeBron James, which happens to include tattoos. In this sense, one might argue - though not without risks - that the reproduction of tattoos is an incidental inclusion of copyright material and therefore the copyright aspects should be superseded by the right to control one's own image. 

Tattooed guy in London

Scenario B - The tattoo reproduced on someone's body is an infringing copy of a third-party copyright work

This second scenario is something that remains even less explored than the first one. A few weeks ago I was walking in the Borough Market area in London, when the tattoo on someone's leg caught my attention. Spotting the resemblance with a well-known comic character, I thought a bit about the case of those that like to get tattoos of fictional characters or well-known artworks (Banksy's graffiti appear to be particularly popular) on their bodies. 

Can one argue that those tattoos are infringing copies if they are realized without a licence from the copyright owner? The UK does not even have a private copying exception [it was quashed in 2015], but things might not be better in other countries, as the Court of Justice of the European Union (CJEU) has clarified that:

• The private copying exception within Article 5(2)(b) of the InfoSoc Directive only applies to reproductions from licensed sources: ACI Adam, on which see Katposts here;
• Exhaustion of the right of distribution only applies to the tangible support of a work, not also the work as such: Art&Allposters, on which see Katposts here. 

Conclusion

All in all it appears that the safest option, when getting a tattoo, is also obtaining a copyright assignment from the tattoo artist, as per NFL suggestions. This is certainly true when the tattoo artist applies to your body one of their creations, but it may be a useful precaution even when the tattoo artist executes a tattoo that you have designed. In the meantime, let's wait to see how the NBA 2K case ends ...

[Originally published on The IPKat on 8 September 2018]