Four years ago, Christopher Escobedo, a tattoo artist in Phoenix, inked a large tattoo of a lion into the ribcage of a mixed martial arts fighter named Carlos Condit. A year later, the fighter and his lion tattoo appeared in the video game UFC Undisputed. Now the tattoo artist is suing the game’s maker, THQ, for copyright infringement. “It’s an exact replica of my art,” says Escobedo. “That’s like a $5,000 tattoo that I got no recognition for.”
Tattoos are a largely uncharted territory in copyright law. “There’s not really been any cases where this has been litigated by courts,” says Timothy Bradley, an intellectual-property lawyer in North Carolina who has written about tattoos and copyright (PDF). Artists have filed suits such as Escobedo’s before, but they have settled before a court could weigh in on tricky questions about what a person is entitled to do with an image stained into his or her skin.
In 2005, Portland artist Matthew Reed sued Nike (NKE), its ad agency Weiden & Kennedy, and NBA player Rasheed Wallace over an advertisement that showed Reed’s rendering of an Egyptian-style family slowly appearing on Wallace’s arm. The two sides settled before the case went to trial. S. Victor Whitmill, the Missouri artist responsible for Mike Tyson’s face tattoo, sued Warner Brothers (TWX) in 2011 over the use of his design in The Hangover Part II. In the movie, a character played by Ed Helms wakes up with a tattoo resembling Tyson’s. Whitmill also settled; Escobedo says he hopes to do the same. (His complaint is now a part of THQ’s bankruptcy proceedings.)
“These [cases] will keep popping up and getting paid off,” says Bradley.
Late last year, a tattoo artist in Louisiana caught the attention of the NFL Players Association with a suit against video-game maker Electronic Arts (EA) and former NFL running back Ricky Williams over a tattoo that appeared on some game covers. That case was dismissed in April, but it left a mark on the players’ union. During the just-concluded NFL pre-season, NFLPA officials began advising players to get copyright waivers or licenses from their tattoo artists, according to George Atallah, the NFLPA’s assistant executive director of external affairs. “All we are doing is proactively telling players, ‘Yes, we know you love your tattoo artists, but regardless of whether or not you trust them, regardless of whether or not there are legal merits to the lawsuits that we’ve seen, just protect yourself,’ ” says Atallah.
While the NFLPA licenses player images to EA and other companies, Atallah says he sees no liability to the union over tattoos. “It’s America and anybody can sue anybody for anything, but we certainly don’t think there are legal merits to that,” he says. Third parties, however, have been named in most infringement cases so far.
Copyright law covers any works in a “tangible medium” that are of “more than transitory duration” and show a “modicum of creativity.” Tattoos would seem to qualify. Catherine Perry, the federal judge who presided over the Warner Brothers case, said that they do. “Of course tattoos can be copyrighted,” she said in remarks from the bench. “I don’t think there is any reasonable dispute about that.”
The more difficult question is how much of an artist’s rights to copy, display, and distribute a work go with a customer once he leaves the tattoo parlor. “The norms of tattooing,” as Bradley wrote in 2011, “necessitate that some of these rights must pass at least partially to the tattoo recipient through an implied license.” Getting a tattoo probably doesn’t mean you can never be photographed or appear on television without infringing on a copyright, but it may mean that your tattoo can’t appear without the artist’s permission in a videogame, on an action figure, or in a parody. ”I’m not saying I own their skin,” says Escobedo, “but I am the artist and the creator.”
Defendants are leery of letting these claims get before a jury because the damages could be costly. As long as the artist has taken the step of registering his copyright, he is eligible for statutory damages. It doesn’t matter, in other words, whether the infringement actually cut into sales. Depending on the nature of the use, the creator would be paid between $750 and $150,000 per unauthorized copy. “With The Hangover they were really panicking,” says Bradley, “because there are posters and advertising, too.”
The cheaper course is to get a waiver beforehand. “Anything you can do to prevent headaches is always good,” says Bradley. “Give them a signed football or something.” Most tattoo artists are just happy for the free advertising that comes with celebrity clients. Football players have not reported any trouble getting waivers so far. “Players are doing it,” NFLPA’s Atallah says. “Tattoo artists are cooperating. And if there is a little extra money exchanged for the license, then so be it.”
Escobedo has a different idea. He says he would charge from $50,000 to $200,000 to sign away his copyright to an NFL player. “A song that only plays for a few seconds in a game gets $25,000 to $100,000 for a licensing agreement,” he says. “I don’t see the difference with my custom mark that was way harder to do in someone’s skin than it is on a computer or a piece of paper.”