JENNIFER HICKS SAGARDUY—Section 102(a) of the Copyright Act of 1976 provides for copyright protection “in original works of authorship fixed in any tangible medium of expression.” When one thinks of copyrightable works, software programs, sculptures, paintings, musical compositions, or one’s favorite novel may come to mind. However, due to the increasing popularity of tattooing coupled with the fact that many professional athletes such as LeBron James, Lionel Messi, and Conor McGregor view their tattoos as a part of their persona and identity, the question has arisen as to whether tattoos meet the criteria for copyright protection.
This question was explored when world heavyweight champion boxer, Michael Gerard “Mike” Tyson, paid a tattoo artist to create and apply a distinctive tattoo to his face, which in 2011, became the center of a lawsuit after the release of the popular comedic movie, The Hangover: Part II. In the movie, a character wakes up to find a replica of Mike Tyson’s distinctive tribal tattoo on his face, and the tattoo artist, S. Victor Whitmill sued Warner Bros. Entertainment Inc. claiming that Warner Bros. infringed on his copyright. It is important to note that Whitmill had Tyson sign a release which acknowledged that all artwork related to his tattoo were his property. Judge Perry rejected Warner Bros. arguments that the tattoo was parody and protected as fair use, stating that the tattoo “did not comment on the artist’s work or have any critical bearing on the original composition. There was no change to this tattoo or any parody of the tattoo itself.” While the case was ultimately settled out of court, Judge Perry reasoned that “[o]f course tattoos can be copyrighted. I don’t think there is any reasonable dispute about that.”
The case of Feist Publications, Inc. v. Rural Telephone Service Co. laid out the definition of originality as requiring both independent creation and a display of a minimal level of creativity. In many instances, tattoo artists have no problem meeting the originality part of the definition, but what makes tattoo art so unique is that the medium on which tattoos are expressed is the human body. Since the case of Whitmill v. Warner Bros. Entertainment, Inc., there have been several copyright disputes centered around tattoos, two of which are in the context of video game depictions of tattoos. In 2012, a tattoo artist sued THQ, Inc., makers of a UFC video game, after depicting mixed-martial-arts fighter Carlos Condit’s lion tattoo, claiming it was an original design for which he owned a copyright registration. Just like Whitmill, this case was settled out of court, but it could be presumed that because the tattoo artist was the creator of the work, the lack of a written assignment of the copyright tattoo to Condit resulted in the image being the artist’s intellectual property.
The most recent case addressing the intersection of sports, intellectual property, and video games is Solid Oak Sketches, LLC v. Visual Concepts, LLC. Filed in 2016 and still ongoing, this case concerns the NBA 2K video game in which well-known NBA stars, such as LeBron James, and their famous tattoos, are reproduced digitally. Solid Oak Sketches granted copyright licenses to the various tattoos and they did not grant permission to the video game publishers to recreate and include these tattoo images. The defendants here are arguing the defense of fair use being that the athletes cannot be accurately represented without their tattoos, and this case additionally raises the question of the athletes’ right of publicity.
The outcome of this case could significantly impact the behavior of athletes, tattoo artists, video game publishers, and those in other creative and visual industries. For instance, the National Football League Players Association has warned players to start seeking copyright waivers from their tattoo artists or other written contracts stating that ownership will be transferred from the artist to the athlete, to shield the athlete and others from potential copyright infringement claims. Should the case be decided for the Plaintiff, the reproduction of tattoos in other mediums such as movies and television may be stifled and should the case be decided for the Defendant, tattoo artists and the industry as a whole may start charging more money for tattoos, to account for the fact that they are charging not only for their services, but for the sale of the copyrighted tattoo to the athlete.
Moving forward, it is indisputable that tattoos can be copyrighted. But it will be interesting to see if courts expand the “work made for hire” definition, defined in Section 101 of the Copyright Act, to include tattoos, which would effectively transfer ownership and authorship from the tattoo artist to the athlete. However, tattoo artists do not seemingly meet the criteria defined in the Copyright statute of an employee preparing the work within the scope of their employment of the tattoo seeker and tattoos are also not one of the explicit categories defined in the statute as a work made for hire. While tattoo artists should be credited for their creations, there is a public policy concern of wanting to protect these athletes from the exploitation of their identity and freedom of their body to display a tattoo that they paid money for. Because tattoos have become a part of many athletes’ personas, copyright law may actually limit an athletes’ right of publicity if they have to share proceeds from licensing the right to use their likeness to video game publishers with the tattoo artist. Lastly, it would seem reasonable if courts resolve this issue by treating tattooing as establishing an implied license, although to be safe, athletes should obtain written agreements so that the lines between tattoos and ownership are not blurred.
