There has been a lot of discussion over the last couple of years in the media about what intellectual property exists in tattoos and who owns it. It is likely that tattoos, if original artistic works, will be subject to copyright and the owner of copyright works is generally the person who created them, i.e. the tattoo artist.
Many of you will have read about Mike Tyson’s tattoo artist, Victor Whitmill, filing a law suit against Warner Brothers, the producers of The Hangover – Part II. For any of you who have not seen the film, Ed Helms, whilst partying in Thailand, gets a tattoo resembling that of Tyson’s well-known tattoo, on his face.
The case was settled out of court in the end, however the Federal District Court in St Louis commented that Mr Whitmill had a “strong likelihood of prevailing on the merits for copyright infringement”. In this case the tattoo artist was unhappy about the fact that the tattoo (his original artistic work) had been reproduced on someone else’s face.
Since that case there has been much discussion over whether entertainment companies should be concerned about infringing copyright in tattoos. There has been talk that US sporting organisations have been advising athletes who have tattoos, to get releases from their tattoo artists. There appears to be fear that tattoo artists could bring claims of copyright infringement each time an athlete is photographed or filmed and their tattoo is visible. Surely there is an argument that someone who purchases a tattoo is granted an implied licence which would include certain rights, e.g. the right to be photographed? If not, this is rather limiting for those who have tattoos. In any case it is unclear, even if such a licence were to be implied, how far it would go, e.g. would it stretch to an athlete’s tattoo being reproduced for the purposes of a video game or a toy?
Last year a tattoo artist, Chris Escobedo, sued US videogame publisher THQ over its UFC Undisputed videogames which featured mixed martial artist Carlos Condit, including a lion tattoo he has on his ribcage. As Condit’s tattoo artist, Escobedo claimed a percentage of the profits from sale of the games based on copyright infringement. THQ have filed for bankruptcy since Escobedo filed the claim and so his claim has been heard in a bankruptcy court. Escobedo claimed he was entitled to 2% of all post bankruptcy sales of the games, amounting to $4.16 million; however the bankruptcy judge held that he was entitled to $22,500 which is the amount that Condit was paid for his image. It seems strange that the value of the tattoo appears to be the same as the value of Condit's image as a whole! Escobedo appealed and the decision was upheld; however Escobedo has appealed the decision again.Let’s hope we get some much needed clarity soon as to the validity of tattoo artists’ copyright claims.