When I started writing about tattoos and copyright law over a decade ago, I never really imagined just how seriously the rights of tattoo artists would be taken in the legal world and by big business. The issue of "Who owns your tattoo?" seemed to me, in the beginning, to be more like a cool question on one of my old law school exams and not one that has teams of lawyers making policy decisions based on tattoos. But it now has.
Last August, in my "Tattoo Copyright & Celebrities" post, I wrote about how the issue of copyright ownership concerning tattoos on football players was "a pressing issue" within the NFL Players Association. As this Forbes article notes, "[...] the association advised agents to tell their players that, when they get tattoos going forward, they should get a release from the tattoo artist, and if they can track down their former artists, they should get a release."
That's just what famed tattooed quarterback Colin Kaepernick did. According to the ESPN article "New 'Madden': Deal done in ink," Kaepernick is the first player in the history of Electronic Arts Sports' Madden video game franchise who will have his tattoos featured in a game because he took care of the tattoo copyright issues -- he got written permission to use the tattoo artwork from his tattoo artists.
As ESPN writes:
"We want to be as authentic as possible, so we were pleased that Colin was able to secure the rights to the tattoos," said Seann Graddy, senior producer of "Madden 15," which will hit the shelves on Aug. 26. "There's a ton of buzz around this. In this game, we only have Colin's tattoos, but we'd love to secure the rights to the tattoos of other players in the future."As the article notes, Kaepernick didn't have too much of a hurdle getting permissions because his extensive tattoo work was done by just two artists, Nes Andrion of Endless Ink in Reno, Nevada, and Orly Locquiao of Humble Beginnings in San Jose, California. However, so many sports figures are scratchpads for a multitude of artists they may not even remember, and so securing rights could be more difficult in those cases.
The issue of tattoo copyright really got people's attention with the infamous Mike Tyson Tattoo Copyright case, which I wrote extensively about 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. When the court started taking the tattooist's claims seriously, the case settled, and big businesses and entitles like the NFL also started to take tattoo art seriously.
Yet, as this case with Kaepernick shows, respecting the rights of tattooists doesn't have to be problem; it can be a partnership.
Video screen capture above from Yahoo Fantasy Sports: Colin Kaerpernick Ink.
Last week, Forbes published an article entitled "Questions Concerning Copyright Of Athlete Tattoos Has Companies Scrambling." It's amazing for me to watch the evolution of the tattoo copyright concept because, when I started writing about it in 2003, people kind of laughed at it: some fellow lawyers told me that tattoos would never get copyright protection and tattooers told me to keep my dirty legal paws off the art form. Not many people took it seriously. Ten years later, people are definitely paying attention, particularly companies and organizations who may risk law suits from tattooers when they wrongfully appropriate a custom tattoo design. And that's what this Forbes article is about in relation to the National Football League and companies that make money off of athletes outside the field.
According to sources speaking to FORBES on condition of anonymity, the issue of copyright ownership concerning tattoos on football players has very recently been labeled as a pressing issue by the NFL Players Association. One source said, "I don't blame [the NFLPA], but they should have been on top of it earlier. It was something that was mentioned at the NFL Combine -- that was the first I had ever heard them mention anything on the issue of tattoos. They advised agents to tell their players that when they get tattoos going forward they should get a release from the tattoo artist and if they can track down their former artists, they should get a release.Getting a release means that the tattoo artist gives up his/her rights to the custom tattoo work (notice, I'm not talking about tattoo flash, which is another issue altogether). Many artists I know would have no problem with this: some may believe that the press generated from the tattoo may bring in more business, some just like seeing their artwork being shown to a wide audience, and others really don't care what happens with the tattoo when it walks out the studio door.
But there are options for artists regarding the rights to their work:
Here's one of the biggest problems: Athletes and celebrities are NOTORIOUS for having bad tattoos. Why? When they want them, they want them at that moment. I hear countless stories of celebrities walking into a shop and expecting the artists to put down their machines and take care of their immediate tattoo needs. So, do you think that many even remember who tattooed them? On bodies filled with little bangers, are they going to travel the world trying to find all the artists who worked on them so they can sign a contract? It's not practical for so many.
Articles on tattoo copyright today cite the issues that arose in Whitmill v. Warner Bros. Entertainment Inc -- the Mike Tyson tattoo case, which I wrote about here, here, and here.
In that case, the tattooist who tattooed Mike Tyson's infamous facial tattoo, Victor Whitmill, sued Warner Bros. for copyright infringement in prominently featuring his tattoo design in the The Hangover 2 and its advertising. In the film, a bachelor party once again leaves its wacky heroes with no clue of what happened the night before, except for a facial tattoo on the groom Stu played by Ed Helms--a tattoo that is practically exact to the one Whitmill inked on Tyson. The lawsuit sought damages and an injunction to stop the use of the tattoo in the film, which would've delayed its big Memorial Day release. The injunction wasn't granted but Judge Catherine D. Perry of Federal District Court in St. Louis did say that Whitmill had a "strong likelihood of prevailing on the merits for copyright infringement" and that most of the arguments put forward by Warner Bros. were "just silly." The case settled soon after in June 2012.
But this wasn't the first case of tattoo copyright involving celebrities. In 2005, Portland tattooist Matthew Reed sued Rasheed Wallace and Nike to stop them from using the custom tattoos he designed for the basketball star in a Nike sneaker ad. The ad focused on the tattoo and even simulated its creation. Also in 2005, UK tattooist Louis Molloy threatened to sue David Beckham if he went ahead with a promotional campaign that also focused on a tattoo Molloy did for him (the guardian angel tattoo). With no clear answer on how judges would go in the cases, agreements between these athletes and artists were reached outside the courts.
The bottom line is that there would have been a less likely chance of the tattooists even thinking about a lawsuit if there was an agreement before the tattoo session even started, or at least a conversation about who owns the rights to the custom work.
Yet, should lawyers be brought into every session?
Will the whole discussion of rights mar the experience of getting a tattoo?
Or does it even matter?
Will it just be like the waivers and releases clients sign before they get tattooed?
It's tricky. There are no easy answers -- which makes it an interesting discussion, and also a scary one for the NFL and companies doing business with heavily tattooed celebrities. And like I have for the past ten years, I'll keep watching how it plays out.
For more on my writing on tattoo copyright check these links:
Call it my obsession, but I've been following the Mike Tyson tattoo copyright (almost as intensely as Beyonce's career) because of its potential impact on the rights of tattooists to defend their art from others who wish to profit from it.
For background, see my first post on it (with some general copyright info) here and the update here.
This post looks like my final update on the case because, yesterday, The Hollywood Reporter published the news that a settlement had been reached between Missouri tattooist, S. Victor Whitmill, and Warner Bros. Whitmill sued Warner Bros. for copyright infringement over its use of his facial tattoo design for Mike Tyson, which was prominent in The Hangover II film. The article stated:
The settlement was no surprise. As I predicted in my posts, these type of cases do tend to settle, and it was pretty clear that Warner Bros. would throw Whitman some money after the judge hearing the case had said that Whitmill had a "strong likelihood of prevailing on the merits for copyright infringement" and that most of the arguments put forward by Warner Bros. were "just silly."
While I'm happy that tattoo artists' rights to their designs were recognized, the tattoo law nerd in me wished that this case had been decided to finally see how the courts would rule on the issue.
Again, I fully believe in a balancing of these rights between client and artist -- or have those rights hammered out in advance between them, especially with celebrities -- but in this case, Tyson himself was not at issue. It was Warner Bros. use of the design in the films, ads, and to-be-released DVD.
Will post a link to this post soon on our Facebook page to get your thoughts.
"Of course tattoos can be copyrighted" -- Judge Catherine D. Perry
Three weeks ago, I wrote about the tattoo copyright controversy over Mike Tyson's facial tattoo and its use in The Hangover Part II film. As I noted in that post, Victor Whitmill, who did Tyson's tattoo in 2003, is suing Warner Bros. for copyright infringement in pirating his tattoo design in the film and using it in its ubiquitous promotion campaign. He filed suit seeking damages and asking the court to issue an injunction to stop the use of the tattoo in the film, thus barring the film's release this Memorial Day weekend.
According to the NY Times Media Decoder blog, on Tuesday, Judge Catherine D. Perry of Federal District Court in St. Louis did not grant the injunction, stating that the harm to the public interest -- businesses beyond Warner Bros that would lose money if the film were not released on schedule -- outweighs the harm to the tattooist. However, the case doesn't end here as the NY Times reports:
Those silly claims include the assertion that tattoos do not have any copyright protection. Warner Bros. pulled out the big guns by having copyright specialist Professor David Nimmer attest that the body is not "a tangible medium of expression," among other arguments including "involuntary servitude." Read Nimmer's declaration in support of Warner Bros. here. It's a departure from Nimmer's original assertion in his treatise on copyright that tattoos are protected under the law. This flip flop did not go unnoticed.
With regard to Warner Bros.'s parody defense, the NY Times quotes Judge Perry: "This use of 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. Any other facial tattoo would have worked as well to serve the plot device." [Some experts like Professor Eric Goldman disagree with the last sentence.]
What most experts do agree on is that this is not a frivolous case and Whitman could receive a big settlement.
Read my original post for the breakdown of issues surrounding this case.
I'd like like to add one more thing: This isn't a case about a tribal tattoo. It is about protection of works by tattooists. It may not stop companies from ripping off artists (especially apparel companies who are notorious for stealing tattoo designs), but big settlements may make them think twice about continuing to do so.
[Thanks to Benjamin for the Nimmer 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...
Tattoo by Gene Coffey stolen from TattooNow.com's Tattoo of the Day.
Beautiful walking works of tattoo art, like ya fine selves, are becoming a tattoo majority, and yet, those who pollute the tattoo gene pool make the big headlines. Sheesh. It wasn't a pretty week for tattoo folk in the news thanks to rabid sports fans, Nazis, and of course, Stephen Baldwin.
Let's begin our review with the burning post-Super Bowl question: What's the ColtsSkinDeep dude feeling like this morning, and will all those autograph tattoos be covered by better memories of yesterday like Betty White/Abe Vigoda portraits or the
Even the Tongan ancestral tattoos of Colts' Fili Moala could not bring the mojo for the team.
While there were plenty of stories on Super Bowl tattoos (even videos), one rebel reporter wrote a feauture on those who prefer the pain of a new tattoo over the Cheetos and beer halftime heartburn. Score!
Indeed, sports tattoos are generally not credited in the evolution of fine art tattooing, but at least they don't further stigmatize the tattooed as criminals like these jackasses:
A Nazi firebombed a tattoo studio in Monterey because they refused his tattoo request: a swastika and an image of President Obama overlaid with crosshairs. He faces seven years in prison for this and another torching.
An upstate NY tattooist was arrested after being found via his social network posts; cops further punked him by leaving this note on his Facebook wall: "Just a quick thank you for giving us your current employer's name and address. Without the help from you and your friends, your arrest would not have been possible. Special thanks for the excellent photos you provided for the U.S. Marshals. Without the help of criminals such as yourself, our job would be much more difficult."
Yet another criminal, this one with a tattoo that reads "Why Try" across his head, is astounded that he was identified (and arrested) for choking a 72-year-old man in a carjacking.
Beyond the criminals, tattoo stereotypes will remain as long as people with bad taste continue to get them. You'd think a bastardized Ed Hardy design tee would be enough, but some need to take their gift of gauche to the next level.
That level being a pornographic Mario Bros tattoo.
Such mistakes can be left behind when we pass -- an upside of death! -- but not for some who wish to enshrine their decorated skin, or at least try to like this dude:
A New Zealand man requested his tattoos be preserved upon his death but because the guy who handles this stuff was on vacation, the body was cremated instead, tattooed skin and all. The family is considering suit over the lost tattoo collection, which includes a Playboy bunny, Aries and Taurus signs, and a DB Export beer logo -- tattoos fiercely mocked by someone other than myself.
And then there are ... sigh ...
... Tattoo. Removal.
I promise to remove such ugly thoughts by focusing on top tattoo work this week like the image above by Gene Coffey stolen from TattooNow.com's Tattoo of the Day.