Results tagged “NFL”
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: