As football season approaches, it is not surprising that star quarterbacks such as San Francisco 49er Colin Kaepernick are making the news. I read an article in Forbes magazine about “Questions Concerning Copyright of Athlete Tattoos has Companies Scrambling.” The impetus for the article was a Yahoo! Fantasy Sports advertisement with him in a tattoo artist’s chair with a tablet featuring a fantasy football app.  Who owns the copyright to the designs embodied in the tattoos all over Kaepernick’s toned body?  This issue has clearly been on the minds of intellectual property attorneys and has arisen as a topic for the NFL Players Association according to the Forbes article.

Fans of the Hangover movie may recall a dispute that arose with Mike Tyson’s tattoo artist and Warner Bros. over the use of Tyson’s face tattoo on actor Ed Helms after a wild night in Vegas with Mike Tyson’s tiger ending up in the bathroom suite.  The lawsuit was settled so the merits of the issue were not resolved in the case.   Steve Baird wrote a nice post on the case.  As Steve points out, the tattoo design may also function as a trademark or service mark, much like a logo or visual element of a brand.

Derek Allen wrote a prior blog post about a suit involving a tattoo artist and a video game maker where the game featured a giant lion tattoo on UFC fighter Carlos Condit. When I read the Forbes article, my mind jumped to media darling (and a favorite athlete of mine) David Beckham who promotes many products while shirtless thereby exposing his many tattoos.

Upon further digging, I uncovered the fact that tattoo artist Louis Molloy had threatened to sue Beckham for copyright infringement in 2005 when the tattoos would be prominently featured in the ad.  Beckham may have to start covering up his tattoos in future ads, such as his pose below.

Given the rise in popularity of The Voice host and Maroon Five lead singer Adam Levine, his tattoos may also be at the heart of a future copyright dispute.

The company using an image of a famous tattooed person is not, however, left defenseless.  A “fair use” defense could be raised.  This defense has been discussed in prior DuetsBlog posts (for example, here). In addition, the company could argue that the tattoo has become a part of the celebrity so that the celebrity could license his or her likeness when promoting products (a right of publicity).  Savvy celebrities getting new tattoos may require releases from the tattoo artist in the future.  Further, in situations such as with the Hangover, a parody defense could also be asserted.  Finally, commentators, such as in the Forbes article have raised the issue of whether the tattoo could be considered a work-for-hire and whether such agreements should be entered into with tattoo artists.

What are your thoughts on the topic?

  • timmaguire

    That last part was my thought throughout this reading. It’s obviously a work for hire–I hire an artist to draw on me, he draws what I tell him, and then I pay him. In what field is such an arrangement not a work for hire?

    Equally obviously, greater legal minds than mine disagree. I just don’t see how they could.

    • The problem is that, under the US Copyright Act, a work is only a “work for hire” when it is created either (a) as part of an employer-employee relationship – in most circumstances, your tattoo artist will not be your employee, or (b) pursuant to a written work-for-hire agreement. So unless you and your tattoo artist signed an agreement stating that this is a work made for hire, it’s not so under the US Copyright Act, and the tattoo artist will be (in most case) the owner of the work.

  • stevebaird

    Thanks David for sharing your analysis, I’ve never been through the tattoo experience, but I’d be surprised if patrons come in with the legal documents to try and create a work for hire when they hire a tattoo artist (assuming it is even the kind of work that the Copyright Act permits to achieve work for hire status — I haven’t studied the question, but I’m skeptical), and I’m doubting tattoo artists volunteer the work for hire arrangement to patrons, and I’m also guessing that those rich and famous patrons who might have contemplated obtaining an assignment of the copyright after the fact, haven’t considered the tattoo artist’s right to terminate after thirty-five years. Notwithstanding the very interesting intellectual property ownership questions in play here, I continue to think that the law of implied licenses will end up playing an important role in the resolution of these kinds of disputes going forward.