The costs associated with getting tattooed have gone up, dramatically, for celebrity athletes and the commercial brands that include athlete images in products and advertisements. There exists a growing trend of tattoo artists suing product brands and marketers for including the images of the athletes tattooed by the artists in products and advertisements. The tattoo artists base their claims in copyright law and assert that the law necessitates them being compensated for all reproductions of their tattoos in products (e.g. video games) and advertisements that include images of the athletes.
The latest in the line of lawsuits challenges the incorporation of tattoos placed on video game avatars of NBA Stars LeBron James, Kobe Bryant, Kenyon Martin, DeAndre Jordan, and Eric Bledsoe in NBA2K. Similar cases have been filed against video game manufacturers for featuring avatars that included tattoos belonging to former NFL star Ricky Williams and professional UFC fighter Carlos Condit. Nike has also been sued by a tattoo artist for the reproduction of tattoo work on Rasheed Wallace in an advertisement. Last but not least, the artist behind Mike Tyson’s famous face tattoo brought an action against Warner Brothers for the way in which the tattoo was featured in the Hangover 2.
All of the cases leading up to the most recent filing settled, leaving unanswered the question as to whether tattoo artists have a legitimate claim in copyright against athletes and those who commercially use images of athletes that include tattoo work without the tattooist’s permission. Only the case involving the Mike Tyson’s tattoo reached a stage of litigation in which the court could comment on the issue and did so with the suggestion that judicially imposed protection for tattoo design is consistent with the copyright law.
The Copyright Act of 1976 provides the producers of original works or properties with legal protection against unauthorized and uncompensated uses (infringement). To establish a legal claim for copyright infringement, artists must prove that their works are original and exist on tangible means of expression. Although many tattoos are developed from flash, stencils that artists use to trace tattoos onto human skin, the originality requirement is an easy threshold for artists to pass. In fact, the Supreme Court has gone on record as stating that the “vast majority” of artistic works easily satisfy as original. Having a low standard for originality makes sense given that courts are not best suited for evaluating artistic creation. As for the requirement of a tangible medium of expression, the client’s skin serves as tangible because the tattoo is permanently affixed to the body. In this regard, the athlete’s skin serves as the canvas for the original artwork for the purpose of copyright law.
So it makes sense as to why the lawsuits, up to this point, have all settled. And the problems posed by the pervasiveness of these lawsuits has led the National Football Players Association (NFLPA) to advise players to get copyright waivers or licenses from their tattoo artists prior to being tattooed. Furthermore, sport marketers and product brands would be well advised to require proof of tattoo waivers or licenses from athletes as a condition to contracts concerning the use of athlete images.
Yet, should copyright law provide tattoo artists with legal claims to all images featuring their work on celebrity athletes? Copyright law exists to protect the interests of artists so that they are encouraged to produce works with the understanding that they will have control over how those works are used and be fairly compensated when their works are reproduced. There are exceptions that allow for certain types of reproduction without compensation when used for the purpose of criticism, comment, news reporting, teaching, scholarship, or research. But none of those protective uses apply to most reproductions in advertisements or commercial products.
Still, a strong argument could be made that the purpose of copyright is not met in the provision of protection to tattoo artists in these cases. The argument posits that the reproductions of tattoos in the overwhelming majority of these cases are incidental to the products or advertisements. Specifically, when a tattoo is incorporated in an athlete’s avatar in a video game, it’s the athlete image and his skill set that consumers value in the game, not the athlete’s tattoo. Similarly, when a tattoo is reproduced in advertisements featuring a celebrity athlete, it’s the athlete’s brand equity, not the tattoo, that product brands uses to appeal to consumers through the endorsements. In both situations, the commercial value assigned the use of the athletes’ images would be the same even if the tattoos were never affixed to the athletes’ bodies. Only in the Warner Brothers case was the tattoo featured rather than incidental because that use involved a reproduction on the face of an actor, Ed Helms, who was not portraying Mike Tyson. However, even in that case, the use of the tattoo in the movie may have still been protected by the First Amendment, which shields from copyright transformative uses in which the raw material of the original work is changed into something new for the purpose of new and different expressions or meanings (in this situation, comedic expression).
Copyright law, or any law, should not be applied mechanically. Law, no matter how simple or theoretical, must always serve pragmatic purposes. And the purpose of copyright law does not seem served by giving tattoo artists unfettered claims to athlete skin. Furthermore, there also exists a question as to whether these types of cases wrongfully restrict the rights that athletes have in managing the celebrity value inherent in their images. Yet, until a defendant pushes a case forward and a court of law actually sides with the defendant, tattoo artists will continue to file copyright infringement cases against those who use athlete images that include tattoos. In the NBA2K case, the video game manufacturer has recently vowed to fight the case on the grounds that they have used the athlete images repeatedly since before the tattoos were registered for copyright protection by the artist (see, http://www.hollywoodreporter.com/thr-esq/nba-2k-videogame-maker-fights-893783). Perhaps this case will either resolve the question in favor of the defendants to challenges brought by tattoo artists, or provide the artists with incentive and precedent to support even more cases.
For more on this subject, see Broiler Plaint Inked: Copyright Actions Brought by Tattooists Threaten Athlete Endorser Publicity Rights by Thomas A. Baker III, and Natasha T. Brison in Sport Marketing Quarterly, 2016, 25.
Post by: Thomas A. Baker III, J.D., Ph.D., Ruling Sports Contributor(@DrTab3)
Thomas A. Baker III, J.D., Ph.D. is a commercial litigator turned professor of sports law at the University of Georgia. His research is mostly on the application of commercial laws to sport. Follow him on Twitter @DrTab3.