Protect Your Ink: Tattoos and their Effect on Copyright and Trademark Law
Justin Wickersham | December 21, 2018
Celebrity tattoos are constantly making headlines and it appears that the art form is only gaining popularity. A recent Pew Research Center survey from 2017 stated that close to 40 percent of adults ages 18-29 have at least one tattoo. With tattoos becoming more common, litigation over the ownership and use of tattoos has also seen an uptick over the past ten years. Despite this increase in litigation, some of the questions tattoos raise in the areas of copyright and trademark law are still very unclear.
Can you Copyright your Ink?
The first real question that arises is whether or not tattoos can actually be copyrightable subject matter. According to the Copyright Act, a work may receive copyright protection if it “is an idea fixed in a tangible medium of expression.” At first glance it seems as though tattoos fit this description pretty easily. However, there is much debate as to whether or not the human body and human skin is a legitimate medium of expression. If it is not, then a tattoo cannot be copyrightable subject matter. Many experts in copyright law believe that human skin is not a tangible medium of expression. One of the first major cases to address this issue was Whitmill v. Warner Bros, also known as the The Hangover II tattoo case. In this case Whitmill, the tattoo artist of Mike Tyson’s famous face tattoo, sued Warner Brothers for recreating the tattoo and using it on actor Ed Helms in The Hangover II film.
Whitmill sued for copyright infringement claiming that he had full rights to the tattoo. This case eventually settled, however one copyright expert provided a declaration explaining why human skin is not a medium of expression. David Nimmer, one of the most published copyright law experts, stated that there are a number of reasons why tattoos should not be considered copyrightable subject matter. Nimmer argues that if a tattoo was copyrightable, the tattooed person (in this case Mike Tyson) would not be able to:
Remove the tattoo;
Modify or add on to the tattoo; or
Display the tattoo on television, in films, photoshoots, etc.
Who Owns the Tattoo?
Even though some experts believe that tattoos should not be copyrightable, the United States Copyright Office did in fact register Whitmill’s copyright application for the tattoo visible on Mike Tyson’s face. Additionally, Mike Tyson signed a release giving all rights of the tattoo to Whitmill. Unfortunately, there really isn’t a specific answer to the question of ownership despite there being an increase in tattoo litigation since the Whitmill case. Most of the cases after Whitmill involve athletes being recreated in different video games. Athletes like Lebron James, Ricky Williams, and Randy Orton have all been at the center of these suits, but the lawsuits often settle or are still pending.
Solutions: Tattoo Artist and Tattoo Owner
With no clear answer available in the law, how should tattoo artists and tattoo owners go about solving this inky issue? While these solutions may be most relevant for cases involving celebrities and athletes, it is still important to understand what rights and options both parties may have. For anyone getting a tattoo, one solution is to get the tattoo artist to sign a release giving up all rights to the ink on your body. This especially makes sense for high profile celebrities and athletes who may be recreated in video games or other forms. In fact, getting releases was an action recommended by the NFL Players Association (NFLPA) shortly after Stephen Allen v. Electronic Arts Inc. et al. After the lawsuit, tattoos disappeared from the famous Madden NFL video game series for almost three years. They reappeared in Madden 2015 but only on Colin Kaepernick, who actually got a full release from his tattoo artist to recreate the tattoos in the game. For tattoo artists, experts recommend that the artists make it clear what kinds of uses require particular permissions. By making things more clear to those wanting a tattoo this can help prevent some future lawsuits. In any case, it seems that both the tattoo artist and customers need to be more transparent when it comes to tattoo use and recreation.
Not Just a Copyright Issue
While much of the tattoo litigation has dealt solely with copyright infringement issues, recently there also have been some trademark issues with tattoos. The most recent example occurred in October in the National Basketball Association (NBA). Cleveland Cavaliers player JR Smith is known for his tattoos, and has nearly 3,000 of them all over his body. One tattoo in particular however, ended up receiving warnings and potential fines for every game Smith played without it being covered up. The tattoo in question is one of the logo for famous streetwear brand Supreme.
Smith, obviously very disappointed with the news, vented his frustrations on Instagram and believed that he was singled out by the NBA. He also questioned why he needed to cover up his tattoo, when other players display Nike and Air Jordan logos. Unfortunately for Smith, the reason why he has to cover up his Supreme tattoo is due to the NBA collective bargaining agreement. The agreement states:
“Other than as may be incorporated into his Uniform and the manufacturer’s identification incorporated into his Sneakers, a player may not, during any NBA game, display any commercial, promotional, or charitable name, mark, logo or other identification, including but not limited to on his body, in his hair, or otherwise.”
The reasoning behind this provision? Trademarks. The NBA has many sponsorship deals with all kinds of companies, like Nike. When a company creates a sponsorship agreement with the NBA or other organization, the agreements usually contain a clause that requires the NBA to enforce the company’s IP rights. Because Supreme can be seen as a competitor to Nike, the NBA needed to step in and protect the interests of Nike as a sponsor. Along with JR Smith, the NBA also forced Lakers player Lonzo Ball to cover up his family “Big Baller Brand” logo tattoo for similar reasons. It has yet to be seen if this will continue to be a trend in professional sports leagues, but it is likely that the NBA and other professional sports organizations will continue to enforce sponsor IP rights in an effort to continue those sponsorships in the future.
When it comes to copyrights and trademarks, tattoos are not a black and white issue. There is still much debate and many questions that have been left unanswered. While it is unlikely that the average tattooed individual will ever be the subject of major litigation, it is important that all customers and the artists pay attention to the issues surrounding this topic. Eventually a legal decision may answer the many intellectual property related questions surrounding tattoos, but until then customers and artists alike need to be more transparent and open about what they can and cannot do with their ink.