More interesting news on the tattoo copyright front, which you know I love as a lawyer and tattoo nerd!
On Monday, a lawsuit was filed in federal court in New York against Take-Two Interactive and other companies associated with the video game NBA 2K16 for reproducing the tattoos of the basketball stars featured in the game series without permission.
The suit was filed by Solid Oak Sketches, a company who licensed the tattoo designs from the following artists who tattooed stars like Lebron James and Kobe Bryant: Justin Wright (LeBron James), Shawn Rome (LeBron James), Tommy Ray Cornett (Eric Bledsoe and Kenyon Martin), Robert Benedetti (Kobe Bryant), and Leslie Hennelly (DeAndre Jordan). More on the licensing deal later in this post.
The lawsuit filing, Solid Oak Sketches v Take-Two, can be found here.
Ok, let me break this down:
While I've been writing about tattoo copyright since 2003, the discussion of tattoos being protected under copyright law didn't really get much buzz until 2011, when the infamous Mike Tyson Tattoo Copyright case was filed. I wrote about that extensively here, here, and here.
In that case, the tattooist who tattooed Tyson's facial tattoo, Victor Whitmill, sued Warner Bros. for copyright infringement in prominently featuring his tattoo design in The Hangover 2 and its advertising. The case, S. Victor Whitmill v. Warner Bros., settled for an undisclosed amount, soon after Judge Catherine D. Perry, who presided over the preliminary injunction phase, stated: "Of course tattoos can be copyrighted. I don't think there is any reasonable dispute about that . . . . [T]he tattoo itself and the design itself can be copyrighted, and I think it's entirely consistent with the copyright law."
Fast forward to July this past summer, when the lawyer for Tyson's tattooer, Michael Kahn, reached out Take-Two Interactive to reach a deal on behalf of the tattooers. As noted in Bloomberg Business:
Kahn offered to drop the threat of legal action against Take Two in exchange for $819,500, covering the use of eight tattoos in the 2014 and 2015 versions of the game, according to a copy of the letter filed with the complaint. The law firm also offered a perpetual license covering 2016 and beyond for $1.44 million.
You can find the letter and the breakdown of the interesting math used to reach these numbers in the exhibits to the lawsuit filing.
I'm guessing, however, that the case will settle as other tattoo copyright cases have.
And then we'll probably see the NBA get after their players to get releases from their tattoo artists to the rights to their tattoos -- just as the NFL did in August 2013.
When artists and athletes come to agreements on tattoo artwork, it can be a win-win, as we saw with quarterback Colin Kaepernick, who got written permission from his tattoo artists to feature his tattoos in the Madden video game franchise. More on that deal here.
So, what kind of deal are we talking about for tattoo artists licensing their art? In the exhibits to the complaint filing, you'll find the licensing agreements between the tattooers and Solid Oak. In them, the artists get 8% of the net earnings of Solid Oak for their designs. I've seen licensing agreements go for more, but it depends on the deals and also how good your lawyer is.
The lesson here is that the rights of tattoo artists are being taken more seriously -- and even more so with every suit filed.
For more on my writing on tattoo copyright in the US check these links:
In the latest edition of the UK's Total Tattoo Magazine (May 2014), you'll find my "Who Owns Your Tattoo?" article, this time looking at the issue through the UK's Copyright, Designs and Patents Act 1988 (CDPA). The title may evoke thoughts of some dystopian universe where evil tattooist overlords dictate what people do with their bodies; however, the article is really about when tattoos are used for a purpose other than being worn proudly. It's not too long and touches on only basic points, but the goal is to get people thinking about these concepts.
I'm also not that familiar with the CDPA, so I contacted an expert, Catherine Jasserand, PhD researcher at the University of Groningen in The Netherlands, to ask her her thoughts on copyright as it relates to custom tattoo designs. I posed this question to her: "If a customer comes to a tattoo studio with an idea but not a design, and the tattoo artist creates an original work for the customer and then tattoos it, who would own the design (if there is no agreement between them)? The artist? The client? Both of them?"
Catherine shared these thoughts for the article:
"An idea in itself is not protectable. If the client gives very vague instructions, then it is doubtful that he or she could be considered as a joint author. However, if client is contributing to the tattoo and decides on important elements such as the composition, shape and so on, I believe it could be argued that the client and tattoo artist could share authorship. In the end, what is important is to question the level of freedom that the tattoo artist has in the execution of the 'design' and which level of creativity is she using."Jasserand also noted that, even if the client pays the tattoo artist, the payment does not mean that copyright on the tattoo is automatically transferred to the client. According to the Intellectual Property Office, the official government body responsible for granting Intellectual Property (IP) rights in the UK, "When you ask or commission another person or organisation to create a copyright work for you, the first legal owner of copyright is the person or organisation that created the work and not you the commissioner, unless you otherwise agree it in writing."
For the full article, pick up Total Tattoo (which you can also find on US newsstands) or download a digital copy.
Outside of the article, Catherine and I also chatted a bit about common copyright issues relating to tattoos on continental Europe, so hopefully I'll get to further explore that sometime soon.
For more on my writing on tattoo copyright in the US check these links:
Looks like The Hangover 2 continues to suffer some bad tattoo juju. First, the controversy surrounding who would play the small role of tattoo artist in the film. And now, the tattoo design itself.
Victor Whitmill, who did Mike Tyson's infamous facial tattoo in 2003, is suing Warner Bros. for copyright infringement in pirating his tattoo design "without attempting to contact [him], obtain his permission, or credit his creation"; he seeks damages and an injunction to stop the use of the tattoo in the film--which is essentially a big part of the movie. In The Hangover 2, a bachelor party once again leaves our wacky heroes with no clue of what happened the night before, except for a facial tattoo on the groom Stu (Ed Helms). There's also a monkey. See the trailer below.
Looks pretty funny but the legal claims are quite serious. [Download the complaint here.]
Tattoos. Copyright. The media is loving it. But in so many discussions of the case, there's a great deal of misinformation, so I'd like to break it down as best as I can.
First, when I wrote "The Tattoo Copyright Controversy for BMEzine in 2003, I approached it like a law school hypothetical; that is, I played with how intellectual property rules would apply in various potential disputes involving the ownership of a custom tattoo design. It was hypothetical because, at the time, no actual cases on record could be found specifically addressing this issue. Well, a lot has changed since 2003. Tattoo artists have sued companies for infringement and a number have received large settlements. Even collectors, like model & photographer Amina Munster [NSFW], have registered their tattoos with the US Copyright Office to discourage other collectors from copying.
The basics behind "The Tattoo Copyright Controversy still hold in addressing what exactly is copyright and its relation to tattoos. A couple of years later, I updated the article for Rankmytattoos.com and continued to post developments on my old Needled.com blog. So click these article links for more of a general discussion.
In this post, I'm going to break down the tattoo copyright issues in relation to Whitmill v. Warner Bros. Entertainment Inc., (E.D. Missouri), what I'll call:
The Mike Tyson Tattoo Copyright Case 101...