Judge Rules in Tattoo Copyright Case - What does it mean for the industry?
Judge Laura Taylor Swain has concluded in a US District Court that Take-Two, the owners of NBA 2K video games have the right to depict NBA players with their tattoos in their games. The lawsuit was brought in 2016 by Solid Oak Sketches a company that had purchased the rights of five tattoos owned by NBA players Eric Bledsoe, Kenyon Martin and LeBron James.
The suit had claimed copyright infringement as the Take-two games had recreated the tattoos of the players in exact detail and featured them within the games.
The case has been of interest to the tattoo community as tattoos have always met the standard definition for copyright protection but it has never been tested in a court of law who owns the intellectual property once it has been applied to a persons skin. There has been no clear case law when it comes to the commercial application of a tattoo once it has become part of someones image.
Whitmill V Warner Bros (Hangover Film)
In 2011, the artist who created Mike Tyson's facial tattoo sued Warner Bros over the release of the film "The Hangover 2". S. Victor Whitmill, claimed that the film was using a reproduction of the tattoo he created without permission on the marketing material for the film and in a scene in the film where one of the actors receives a face tattoo identical to Mike Tyson. Whitmill's ownership claims were never tested as the parties settled before court.
Reed V Nike
Court cases over tattooers intellectual property go back even further. Matthew Reed, a Portland based tattoer sued his former client Rasheed Wallace a basket ball player for the Detroit Pistons and Nike in 2005. Wallace was to star in a Nike Commercial explaining the origins for his tattoos while they were digitally traced on the screen. Reed felt he retained the commercial copyright as he had created the Egyptian design from scratch and subsequently brought a lawsuit. The case was inevitably settled and the commercial became a short lived piece of history.
Molloy V Beckham
Again in 2005, footballer David Beckham had intended on featuring his tattoos in an upcoming advertising campaign. When his tattoo artist, Louis Molloy got wind of this, it led to a public spat regarding the ownership of the tattoos intellectual property. Similar to the Reed V Wallace case, Molloy had sketched the angel design on Beckhams back from his own interpretations after studying an anatomy book. The feud ultimately led to an interview with Mr. Molloy in The Daily Mirror that ran under the headline “I Own Beck’s Tattoo .. and I’ll Sue.”
Court cases against athletes over their tattoos has led to some professional organisations to be proactive in this area and recommend acquiring a copyright waiver or a license from their artist prior to obtaining a tattoo.
Other Tattoo Cases Relating to Licensing
Even the commercial application of tattoo flash or a design can lead to complications around ownership rights, especially if it has been applied in a medium or in a way for which it was not originally intended.
Collins V Sailor Jerry Case
An example of a dispute over ownership rights feature's in Andrew Stortz's podcast below. In the discussion they focus on the case brought against the owner of Sailor Jerry liquor by his widow Louise Collins. According to Louise Collins, William Grant & Sons (owner of Sailor Jerry liquor) “never sought or received permission” from her to use Sailor Jerry’s likeness. Surprising to some, the Collins family receive no benefit from the Sailor Jerry imagery that has been commercialized over the past thirty years.
Following his death in 1973, Mrs Collins asked Mike Malone if he was interested in buying his tattoo shop, Sailor Jerry Tattoo later renamed China Sea Tattoo in Honolulu, which included anything which was contained within such as tattoo flash, art and letters from other tattooers. She explained that it was always Norman Collins’ wish that one of his protégés should take custody of his legacy.
A price of $20,000 was paid for the shop. Collins widow would have believed her husbands legacy would have continued on within the tattoo industry as a going concern and remained true to her husbands wishes.
Again as was normal with the ambiguous nature of the industry and the time of the sale (70's), the shops sale would have been finalised with a simple bill of sale. There would be no mention of the word intellectual property as it wasn't a term used back then but unfortunately for Mrs. Collins she couldn't have foreseen that thirty years later through the rise in popularity of tattooing her husbands artwork would be commercialized on everything from clothes to liquor but this is exactly what happened. If she had, she might have reconsidered the sale or at the very least the valuation.
In the late 90's Malone and Ed Hardy, Collins other protege established Sailor Jerry Ltd, to own and manage the commercial rights to Collins' body of work, letters art and flash. They partnered with adman and entrepreneur Steven Grasse from Quaker City Mercantile who began to license the artwork on various products which culminated in Sailor Jerry Rum. Quaker City Mercantile later purchased Sailor Jerry Ltd from Malone & Hardy and went on to sell it to the current owners.
The management and subsequent sale of Sailor Jerry Ltd, raises a lot of questions that have yet to be answered. If Sailor Jerry Ltd owns the intellectual property of the flash that came with the purchase of the shop, who owns the intellectual property of flash sheets sold prior to Sailor Jerry's death? In purchasing Sailor Jerry's shop did it include a license to use Norman Collins likeness and not just the Sailor Jerry name?
Courts Summary Judgement & Future Outlook
In the NBA2k case the judge based her decision on the legal arguments of copyright fair use due to the fact that out of the 400 players a gamer can choose from the tattoos only feature on three of the players. Additionally based on average game play the players are unlikely to feature and the details of the tattoos are nondescript as the players are usually in mid movement.
What is of note in the judgement are the arguments around tattoos and implied license. Each artist admitted that they intended their artwork to become part of their clients likeness or image and with that comes an implied license. In the case of celebrities this implied license would extend to using their likeness including their tattoos within the media or anything for which they have licensed their own likeness.
So this clears up the ownership and usage of a tattoo design applied to skin but what about the application of a tattoo design in something commercial for which it was not originally intended as in the Sailor Jerry case? Well this has still yet to be decided by the courts.
Modern Tattooing & Licensing
Luckily in current times the value and commercial opportunities derived from intellectual property is well understood. Digital tools used by artists in the creation of designs or flash have had the foresight to be diligent in this area and apply rigorous licensing agreements.
Do you use Procreate or any similar graphic design product like Adobe in the creations of your designs? Have you considered what license you have for the artwork you have created with these tools or brushes? We reached out to Tattoo Smart, a creator of procreate tools for tattoo artists founded by artist Russ Abbot. We wanted to understand if you create a design using flash brushes from Tattoo Smart what would the limited license on their website cover.
A spokesperson for TattooSmart responded: "Tattoo Smart’s use license allows for tattoo artists to use the designs for the purposes of tattoo design intended for permanent application on human skin. If someone wanted to use our designs for some other commercial purpose, they would need to obtain written permission from Tattoo Smart and in some cases the contributing artist may need to also give written permission."
Similarly if you are using brushes with Adobe products you need to conscious of licensing. A lot of brushes are free for personal use but if you are using them for profit you need to obtain a commercial license for the brush .
In terms of usage licensing for references or imagery used in design we reached out to Reference87.com, an image library for artists by artists created by Ben Kaye and Taylor Compain. A spokesperson for Reference87 commented: "Once a Reference87 image has been manipulated from the original form & adapted into a new artwork it can be used for commercial uses. The photos themselves can not be used for any commercial use but what artists produce from them can. "
So what does all this mean for the tattooer? If you apply a tattoo to someones skin you are giving them an implied license as part of their likeness. In terms of tattoo technology used in the design process, most tattoo technology companies as shown above will try to be as liberal as possible to its customers if they are using it in the way that was intended. So if you using it to create a design which will eventually become a tattoo on someones skin you should be ok. If your intent on how its going to be applied changes, i.e in a large commercial way, you need to check your license agreement. Modern license agreements are designed to offer companies future protection. Remember nobody wants to see a 3rd party profit majorly in the future off their product just because it was applied in a way that wasn't originally agreed or could not have been foreseen.