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:
Tonight, from 6 to about 7:30PM, I'll be speaking on a panel entitled "Tattoos: Fleshing out Copyright Law" at NY Law School along with tattooist Michelle Myles and attorney Michael Kahn (who represented Victor Whitmill, the artist who inked Mike Tyson's facial tattoo and sued Warner Bros. for copyright infringement.)
We'll be having fun discussing the intellectual property issues as they apply or may apply to tattooing, and I'm sure creating some controversy over who owns your tattoos.
For a glimpse into our talk, check my previous posts on tattoo copyright. I'll also be doing a follow up on any new issues we discuss that haven't been brought up here.
The panel is open to the public, so feel free to come by and share 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...