This is part of a series of posts talking about how the law interacts with tattoo art and what happens when other art gets involved. I’m still not a lawyer.
Tattoos have existed in their present form for 5,200 years (Lineberry). In modern Western society, the term body art is synonymous with tattooing, which indicates a huge shift in status for permanent body modification and, as a result, to a shift in the conversation about who owns what. Copyright law, with the relevant clauses in their present form, had been around for a less impressive 143 years. Despite the long tradition of tats, ownership, and lawsuits that makes America great, this is a pretty new subject of legal speculation.
The first tattoo artist to seek an answer to this question was Christopher Escobedo who, in 2009, filed suit against THQ, a company that publishes video games. THQ published a game modeled around the sport of Ultimate Fighting called UFC Undisputed. It included a particular fighter, who had licensed his image, including his tattoo, to THQ. Escobedo does not believe the tattoo was the fighter’s to license and, unfortunately, THQ filed for bankruptcy before a court could address the matter (Gardner).
When video-game maker Electronic Arts released games in 2012 related to the National Football League, they were subject to a lawsuit from a tattoo artist as well (Boudway). While this case was not pursued to completion, it did result in the National Football League Players Association issuing the following advice to its members: get a waiver or a license (Boudway). Assistant executive director of external affairs for the NFLPA, George Atallah, says that they are encouraging players to seek protection from infringement suits regardless of their relationship with their tattoo artists and regardless of any legal merits of suits of this kind (Boudway). According to Boudway,
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” (Boudway)
While Escobedo, the artist that filed suit with regards to a UFC licensed video game, is incorrect with regards to parody, which would be considered fair use under the current copyright statute, it is likely true that it would be a challenge to come up with a use that was a true parody, rather than an exact reproduction.
While the NFLPA may not take these suits seriously, “defendants are leery of letting these claims get before a jury because the damages could be costly” (Boudway). According to Boudway, Bradley believes that “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” (Boudway). This is, in part, why the Hangover 2 settlement seemed to have come to fruition so quickly. Bradley says, “With The Hangover, they were really panicking…because there are posters and advertising, too” (Boudway). Escobedo argues that his art is especially worthy of copyright; “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” (Boudway).