Whose Tattoo? Tattoo Copyright labeled “Pressing Issue” by NFL Player’s Association

Photo Credit: Aaron Frutman http://www.flickr.com/photos/34495711@N06/

By:  Angela Brosnan on September 17, 2013

In the past, sports agents and team managers walked on pins and needles when dealing with professional athletes who sported tattoos.[1]  Tattoos were thought to detract from a player’s brand.  Concerns were focused on covering up any tattoos that could be distracting or problematic for maintaining a cohesive team image.[2]

Lately, the conversation about athletes with tattoos has become more colorful, with many shades of depth and complexity.  In addition to leaving their mark on the playing field, professional athletes with tattoos are beginning to fill pages of case law and legal jurisprudence with their ink.  As players are being depicted in products ranging from trading cards to videogames, sports law scholars are wondering who owns the copyright to the images of the tattoos on athletes’ bodies.[3]   Does the person who receives a tattoo own the images that are tattooed on him or is the copyright owned by the artist?[4]  This question was the focus of a 2011 lawsuit brought by tattoo artist S. Victor Whitmill against Warner Brothers Entertainment.[5]

Whitmill argued that the movie “The Hangover Part 2” incorporated a tattoo he created for boxer Mike Tyson in 2003.[6]  In his motion for a preliminary injunction in the U.S. District Court for the Eastern District of Missouri, the artist described the tattoo on the left side of Tyson’s face as “one of the most distinctive tattoos in the nation.”[7] This case eventually settled out of court, leaving the NFL Players Association and other interested organizations to speculate about tattoo image ownership.

According to a Forbes article written in August 2013 by Darren Heitner, it is likely that tattoos can be copyrighted.[8]  Forbes reached out to Jeffrey Harrison, University of Florida Levin College of Law professor of Copyright, who told the periodical: “If it is copyrightable on paper, it’s similarly copyrightable on any medium that lasts, including skin.”[9]  If a court determines that tattoos can be copyrighted, and the artist has not signed a waiver or a work-for-hire agreement with the tattoo recipient, a court is likely to find for the artist.[10]  This likelihood puts players and their endorsers at the constant mercy of tattoo artists from players’ pasts.  The situation also has the potential to create a chilling effect for endorsement deals with tattooed players.

Copyright ownership to players’ body ink has recently been labeled a “pressing issue” by the NFL Players Association.[11]  Until courts can provide a clear answer on the ownership issue, players are urged to bring releases with them to the parlor.  One commentator has even suggested that players attempt to track down artists from the past to sign releases.[12]

At a time when players are becoming more and more defined by the ink on their skin, endorsers will want to portray their players with their distinctive tattoos.  If portraying San Francisco 49ers Quarterback, Colin Kaepernick, in a video-game, for example, third parties will likely want to incorporate his signature touch-down move, kissing his bicep tattoos, into the likeness.[13]  Until players can get releases from all past and present artists, however, third party entertainment powerhouses, like Electronic Arts, are out of luck.  To avoid the potential and very real risks of copyright infringement, endorsers are urged to use ink-free likenesses of their players.  If endorsers fail to appreciate this risk, they may be tattooed with a lawsuit; something they will likely regret in the future.

[1] See, e.g., Mike Florio, League May Use Police Experts to Check Player Tattoos, NBC Sports (Aug. 18, 2013, 4:23 PM), http://profootballtalk.nbcsports.com/2013/07/23/league-may-use-police-experts-to-check-player-tattoos/ (suggesting that some player tattoos may have gang affiliations in wake of Aaron Hernandez arrest and noting new NFL policy of analyzing new players’ tattoos).

[2] See, e.g., Does the NFL need to regulate player tattoos?, Hub Pages (Jan. 16, 2013) (Aug. 18, 2013), http://criticalthinker1.hubpages.com/hub/Does-the-NFL-need-to-regulate-player-tattoos (noting that tattoos do alter team image and noting that NFL may have grounds to mandate cover-up of tattoos).

[3] See Darren Heitner, Questions Concerning Copyright Of Athlete Tattoos Has Companies Scrambling, Forbes (Aug. 14, 2013, 8:01 AM), http://www.forbes.com/sites/darrenheitner/2013/08/14/questions-concerning-copyright-of-athlete-tattoos-has-companies-scrambling/.

[4] See id.

[5] See Whitmill v. Warner Bros. Entm’t, No. 11-0752, motion for preliminary injunction denied (E.D. Mo. May 24, 2011) (denying artist’s motion for injunction).

[6] See Tattoo Artist Fails to Stop Release of ‘Hangover’ Sequel: Whitmill v. Warner Bros. Entm’t,23 No. 5 WJENT 5 (2011) (quoting Complaint, which stated, tattoo design was  “one of the most distinctive tattoos in the nation.”).

[7] See Whitmill v. Warner Bros. Entm’t., No. 4:11-cv-752, 2011 WL 2038147 (E.D. Mo. April 28, 2011) (providing trial pleading).

[8] Darren Heitner, Questions Concerning Copyright of Athlete Tattoos Has Companies Scrambling, Forbes (Aug. 14, 2013, 8:01AM), http://www.forbes.com/sites/darrenheitner/2013/08/14/questions-concerning-copyright-of-athlete-tattoos-has-companies-scrambling/.

[9] See id. (noting that tattoos can likely be subject to copyright infringement).

[10] See id. (noting releases and work-for-hire agreements can be solutions for players).

[11] See Mark Schiff, Who Owns the Copyright on an Athlete’s Tattoo?, Sports Examiner (Aug. 14, 2013), http://www.examiner.com/article/who-owns-the-copyright-on-an-athlete-s-tattoo.

[12] See id. (proposing that players track down their old artists and have them sign releases).

[13] Doug Farrar, Colin Kaepernick Wants You to Know: He’s Smarter -Than You May Think, Sports Illustrated (Aug. 14, 2013), http://nfl.si.com/2013/08/14/colin-kaepernick-wants-you-to-know-hes-smarter-than-you-may-think/ (highlighting important role Kaepernick’s tattoos have played in his football career).