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:
Considering just how many tattoo books have been recently published, it's interesting to see how much media attention has been focused on Pen & Ink: Tattoos and the Stories Behind Them -- a collection of illustrations by Wendy MacNaughton depicting people's tattoos along with the stories behind them. MacNaughton and editor Isaac Fitzgerald, who based the book on their Tumblr (of the same name), highlight the tattoo stories of rock stars as well as "ordinary people" in an "exploration of the decision to scar one's self with a symbol and a story."
Overall, the book's reception (from outside of the tattoo industry press) has been favorable. For one, Maria Popova had quite a positive review of the book on her Brain Pickings blog (of which I'm a huge fan). In her review, which offers extensive excerpts and illustrations from the book, Popova writes:
From a librarian's Sendak-like depiction of a Norwegian folktale her grandfather used to tell her, to a writer who gets a tattoo for each novel he writes, to a journalist who immortalized the first tenet of the Karen revolution for Burma's independence, the stories -- sometimes poetic, sometimes political, always deeply personal -- brim with the uncontainable, layered humanity that is MacNaughton's true medium.These stories are not necessarily well received by all. As Margot Mifflin writes in her review in SF Gate, she found Pen & Ink to be "a slight and parochial collection of anecdotes that reinforces some awfully weary tattoo cliches." She explains:
One [anecdote], occupying an entire page, written by someone who wears the words "pizza party" across her toes, says only, "I really f-- love pizza." Most of the other contributors muster a paragraph or two, saying in print what you can hear on any tattoo reality show, if you must: backstories for memorial tattoos, pet tattoos, relationship tattoos and "reminder" tattoos -- those permanent Post-its bearing personalized platitudes.Those of us in the tattoo community like to say -- especially in light of the endless reality shows -- that not every tattoo has a story. We can get a tattoo simply because we like it, and the design itself need not be imbued with grave significance and meaning. But really, every tattoo does have a story in some way -- the story of the experience of getting tattooed. And a key component to that experience is the artist. That seems to get lost in Pen & Ink. As Margot notes, "[...] respected tattooists [are] consigned to the back pages of this collection as footnotes to bar tales, some of whom are not even identified by name, but instead by "parlor.'"
As a lawyer, I was naturally intrigued over whether the tattooists ever gave permission to have their tattoos reproduced as illustrations. As I have written about endlessly regarding tattoo copyright, tattooers generally hold the copyright to their designs, or at least share them with the client, unless those rights are otherwise transferred, licensed or assigned. I wonder if the tattooers were ever even contacted to give permission to have their artwork reproduced. [In general, the copy need not be exact, and creators could retain their rights even if their work is translated in other forms.] I'll leave an extensive legal discussion out of this post, but only wanted to mention it in the context of how this book falls short by not giving the proper credit and respect to the very reason why the book exists -- that there were tattoo artists behind every story.
Nothing in this post should be relied upon as legal advice. Obviously.
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.
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:
If you are a regular reader of this blog, you're probably tired of my tattoo copyright posts, but I just had to mention the latest news concerning the issue because it really doesn't sit well with me at all.
Forbes reported that one guy decided he could make money by taking the tattoos of celebrities and putting them on merchandise, so he hit up six tattooers of at least eight athletes, including LeBron James and Kobe Bryant, and purchased exclusive licenses for the "art," including personal, custom work such as Bryant's wife's name, Vanessa, and a tattoo inspired by her hair (shown above).
Legally, I agree that the tattooists have the right to license the tattoo work, without an agreement in which they assign all the rights to the clients. Arguably, both the artist and the client can be joint owners in the tattoo art and would share any profit they make from the artwork, 50/50. I discuss this more in my last post on tattoo copyright and celebrities.
But, outside of the law, this kind of deal seems like a breach of the trust and respect between artist and client. Particularly in Bryant's case, these are works that have individual significance to the collector, a tribute to family and faith, and to commercialize it like this seems, well, gross. Just because it may be legal, doesn't make it right.
When I started writing about tattoo copyright ten years ago, my focus was on protecting artists from companies trying to appropriate tattoo artists' work for merchandise, media, etc, without permission. I had faith that the tattoo industry could police itself when it came to managing the rights to artwork among artists & clients themselves. [For an excellent article on tattoo copyright & self-governing in the tattoo industry, read Aaron Perzanowski's Tattoos & IP Norms.] However, tattoo ethics seem to face a tough fight when business men make big money promises for less-than-stellar artwork.
Maybe clients, especially celebrities, do need to be bringing contracts into their tattoo sessions if they don't want their custom tattoos blasted on hoodies and condom wrappers.
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:
If you're a regular reader of this site, you're probably ready to run away. How much more can this woman talk about tattoo copyright, right?! It's almost a decade of this discourse, from my first article in 2003 on BME -- which was oddly quoted again today in Bloomberg's BNA blog -- to posts on this blog here and here and here ...
But I got so much more to say, and I plan to do it in a hands-on practical way that will help artists and collectors truly understand how copyright and trademark works, how to protect your rights, AND how to profit from your artwork through licensing. And I'll be doing it with fellow tattooed attorney John Kastelic at the wonderful Paradise Tattoo Gathering next month in Keystone, Colorado, September 13-16.
We'll be addressing these questions:
Who owns your tattoo? Is it you . . . or your client?
In addition, artists more and more are finding alternative avenues for
generating revenue from their artwork, image and even endorsements -
this seminar will provide information to understand how to
control the use and licensing of your work and image as well as
understand the issues you may confront and how to be prepared to
maximize your profits and best protect your interests before signing
away any of your rights.
The multi-media presentation will include real world examples, informative handouts, sample contracts, and a Q&A. I encourage participants to submit questions beforehand to marisa(at)kakoulaslaw(dot)com but any question during the seminar will be addressed.
Space is limited so it's best to book your spot now online. The cost is just $175, a bargain just for the sample contracts alone. It will take place 5-7pm Saturday, September 15th.
This morning I received an email from Shannon Larratt (founder and former owner of BME.com) regarding the use of his images -- as well as those from BME, tattoo artists' portfolios and even my own images -- without permission on TattooDonkey.com and TattooMeNow.com.
Read Shannon's FB post on how he's pursuing this.
The sites market themselves as vehicles to help people "find your tattoo design" and "the quickest and easiest way to find your dream tattoo." The problem is that the dream tattoo could be your own custom work. And we all know how I feel about tattoo copyright.
It does not appear that the use of the images on these sites falls under Fair Use -- for example, using an image to comment or critique a work; however, I've been unable to further explore the TattooMeNow.com site without a membership. It seems I have to pay to view my own work.
I've sent a request to TattooDonkey.com to take down my images from their site, and many others are doing the same. I've also emailed TattooMeNow.com to discuss this further. Will keep you updated.
It's perhaps fitting to also mention that I'm doing a seminar on "Copyright, Trademark & Licensing for Tattoo Artists & Collectors" in September at the Paradise Tattoo Gathering. More info here.
I've been called a Harpy. A pariah. A vampire sucking the soul of tattoo culture.
There are probably many other reasons for them, but often the context of such compliments are my writings on tattoo copyright.
During the legal circus surrounding the Mike Tyson tattoo in "The Hangover" film, which later settled between the tattooist and Warner Bros., I wrote about copyright particularly in light of this law suit.
I revisited this case in the March issue of Inked magazine, but also discussed further issues in tattoo copyright. Now that full article is available online for free. [For some reason, Inked decided to illustrate the article with tattooed boobs and butts, perhaps because they thought no one would read it.]
Entitled "Who Owns Your Tattoo?", the title and opening are intended to spark a bit of controversy. It starts off like this:
If you think that you alone have the rights to your own skin, you may be wrong. The idea of another person, or even a corporation, claiming ownership over your body may seem absurd, but as recent lawsuits for copyright infringement of tattoo art have implied, the courts could very well decide who gets a piece of you tomorrow.See what I mean? Harpy-like.
But beyond being controversial, there's serious talk about Fair Use, Work for Hire, Rights of Publicity, and Licensing. [In fact, licensing the artwork of tattooists has been a big part of my own legal practice lately.]
Check out the article and feel free to offer your thoughts via our Needles & Sins Group on Facebook or Twitter.
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.
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.
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...