Mackenzie Watson

April 28, 2016

JMC-300

Media Law research paper

Courts today are greatly conflicted on rulings regarding tattoos on athletes and deciding

who owns the copyright to the tattoo. When an NBA player gets a tattoo on his body designed by

a tattoo artist, it is undecided who owns the right to display the tattoo on media outlets such as

commercials and video games. Some argue that the artist has the copyright, while others disagree

and say that the players own the copyright. A situation like this has not been resolved in courts

yet today.

This situation occurred in the Reed v. Nike Inc. case in 2005. A tattoo artist, Matthew

Reed, complained to U.S. Courts regarding a tattoo he designed on Rasheed Wallace, an NBA

player and client of Reed’s. Wallace was in a Nike commercial that was advertised on TV and on

the Nike website, featuring the tattoo created by Reed. Reed claimed that Nike committed direct

infringement. Meaning that Nike did not have the authority to feature the tattoo design without

the permission or approval from Reed.

Wallace signed a release mostly concerning liability prior to receiving the tattoo.

However, he signed nothing that had to do with delegating who has the copyright of the tattoo.

Because Reed did not have Wallace agree or sign anything concerning copyright, both Reed and

Wallace agreed to dismiss the case and settle with a confidential settlement.

Looking at the side of the tattoo artist, they argue that although their art isn’t considered a

“fixed medium,” such as paper, a canvas, or photograph, they think that skin should be

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considered. They say that inking a tattoo on someone’s body isn’t any different that painting on a

canvas. They also make a point concerning the use of their designs in video games, saying that

because video game developers didn’t ask their permission to display the tattoo on the players, it

is therefore illegal.

An exhibit in a museum in Honolulu, Hawaii, observes that tattooing is a clear form of

art. On the museums website, the Honolulu Museum of Art, it states “Tattooing is an art” going

on to say that tattoos come from a deep background in culture and history and has since evolved

into being more recognized as art than ever. “The lines between ink on skin and paint on canvas

or pencil on paper have been blurred with tattoo artists reaching the skill level of other artists,”

stated the website.

In research throughout “The Challenges ‘Facing’ Copyright Protection for Tattoos,”

Yolanda M. King generally discusses what a tattoo is, concerning originality and fixations of the

tattoo, then specifically discusses the “copyrightablilty” of a tattoo. King breaks the tattoo into

the category of the ability to be copyrighted saying, “Tattoos appear to meet the requisites of

copyright protection10—in some cases, they are original works of authorship, and in almost all

instances, they are fixed in a tangible medium of expression—and fit within a category of

copyrightable subject matter.”

King questions and discusses whether or not a tattoo is a “fixed medium of expression.”

Considering that within the United States copyright law, there is no definition of the word

“medium,” courts therefore look to define it in “plain and ordinary” meanings. In that context,

“medium” most closely means a “material or technical means of artistic expression.” Therefore,

since skin is being used as a form of expression, created and done by a tattoo artist, the copyright

should belong with the artist.

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 However, courts need to take into account that there is a need to define terms such as

“medium, fixed, artist and even tattoo” in order to gain a better understanding of the legal

contexts in which the tattoos may be placed. Furthermore, it will better able set a precedent

needed to reach future decisions concerning copyright and tattoos in courtrooms. It may also

prompt tattoo artists to have clients, especially athletes and other people in the public eye, to sign

a contract that clearly gives the artist the copyright.

In Article I, Section 8, Clause 8 in the United States Constitution, it states that Congress

has the ability to “Promote the Progress of Science and the useful Arts, by securing for limited

Times to Authors and Inventors the exclusive Right to their respective Writings and

Discoveries.” Therefore a tattoo artist falls under that legal protection because they are

considered to be an artist, not any different than an artist that paints, or a writer that writes

novels.

The 1976 Copyright Act made by Congress defines “originality” as being something that

contains some creativity. Meaning that it is not the same as another design or based off another

design. Also, that it was completely created by the author or artist and nobody else helped to

make it. Therefore, as long as a tattoo meets those standards, it is considered to be a

copyrightable piece of artwork.

In an article published by the Wall Street Journal titled “Athletes’ Tattoo Artists File

Copyright Suits, Leaving Indelible Mark,” a tattoo artist says that he doesn't think that the

copyright belongs to him, it belongs only to his client because they paid for it. Based from this

reason, some people believe that it unquestionably belongs to the client.

In an article “Hey, Pro Athletes: Your Tattoo is going to get you sued” cited one person,

saying “That tattoo artist must feel he now owns a portion of carlos condits rib cage too huh?”

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Referring to the tattoo on a UFC fighter who had a lion tattooed on his ribcage by artist

Christopher Escobedo. Escobedo sued THQ, a video game developing company, for featuring

the lion tattoo in the video game UFC Undisputed without legal permission from Escobedo to do

so.

The player argues that they paid for the tattoo and therefore, they paid for the copyright.

Since the tattoo is on their body, and they own their body, they say that the tattoo is completely

theirs— including the copyright. Many people believe that once something is permanently on a

part of a body, it becomes a part of who that person is. If someone strips someone of who they

are, their identity, or gives it to someone else, that is considered illegal and morally not right.

Some tattoo artists like Megan Wilson, in the Wall Street Journal article, said that she

thinks of a tattoo as being something she designs, considering it to be a piece of art, however

then gives it someone else, like a gift. So therefore, in her opinion, the copyright does not belong

to her.

Many people that have tattoos support this idea and say that having the tattoo is a part of

who they are. Therefore, they own it. Gabriella Olsa, who has two tattoos, said “I’m having

trouble trying to understand if I were in the situation in deciding who has the copyright to one of

my tattoos. I was the one that came up with the idea to have words tattooed on me because they

are meaningful to me. So therefore, I feel that I am partly the creator of the tattoo.”

However, some tattoo artists that are affiliated with a specific tattoo shop, have taken the

initiative to copyright their tattoo designs prior to tattooing an individual. In an ESPN article,

“Makers of NBA2k sued for using players’ tattoo without permission,” the tattoo company, Solid

Oak Sketches, sued the game developers for displaying one of their designs on a player depicted

in NBA2k16. In this case, because a copyright was set in place and they sought out to negotiate

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with the video game company, NBA2k16 was in the wrong and the copyright did in fact belong

to the tattoo artist.

“However, I do understand that if the tattoo artist I got my tattoos from asked me to sign

a waiver, giving him full copyright, I don't think I would be opposed because he is asking,” said

Olsa.

In Whitmill v. Warner Bros. Entertainment Inc. a situation regarding a tattoo on Mike

Tyson being incorporated into the movie “The Hangover Part II,” became a debate concerning

who owns the copyright to the tattoo. Whitmill sued for infringement because his tattoo was

featured in the movie to the extent where he felt he had created the resulting humor in the tattoo

that was featured in the movie. The two parties ended up settling by having the tattoo digitally

removed. However, many people had something to say about the case.

Jude Catherine D. Perry, the judge in the case said that tattoos can be copyrighted.

However, a witness in the case, David Nimmer, disagreed and said that because Congress never

made it completely clear where the copyright ownership lies when having to do with skin, it

“would set a troubling precedent.”

In my opinion, the copyright of the tattoo belongs to the tattoo artist. Although the player

paid for the tattoo, it is still the design and creativity of the artist. I think that skin should

definitely be considered a “fixed medium.” It is not different than a blank canvass. Furthermore,

that is how some people who have tattoos believe their skin to be anyways— a blank canvas.

However, I think that congress needs to pass an updated Copyright law in saying that tattoos are

in fact copyrightable and the rights belong to the tattoo artist. In the meantime, in regard to

tattoos being featured on TV and video games, the artists should require that their clients,

especially high profile clients such as celebrities and athletes, should sign a contract or some

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kind of release form that clearly states that the tattoo artist owns the tattoo and therefore the

copyright.

Bibliography

“US Constitution,” Stanford Copyright and Fair Use Center US Constitution Comments.
Stanford University Libraries, 08 Apr. 2013. 26 Apr. 2016.

Johnson, Lisa C. "Before The Ink Dries: Copyright Law & Tattoos." Legalzoom.com. Legal
Zoom, 25 Feb. 2014. Web. 26 Apr. 2016.

Boudway, Ira. "Hey, Pro Athletes: Your Tattoo Is Going to Get You Sued." Bloomberg.com.
Bloomberg, 4 Sept. 2013. Web. 26 Apr. 2016.

Rovell, Darren. "Makers of NBA2k Sued for Using Players' Tattoos without Permission."
Espn.go. ESPN, 1 Feb. 2016. Web. 25 Apr. 2016.

King, Yolanda M. "Challenges "Facing" Copyright Protection for Tattoos." University of Oregon
Libraries. Oregon Law Review, 19 Nov. 2013. Web. 24 Apr. 2016.

"Exhibition Overview." Tattoo Honolulu. Honolulu Museum of Art, 2014. Web. 25 Apr. 2016.

Olsa, Gabriella. "Media Law Research Paper on Copyright of Tattoos." Personal interview. 20
Apr. 2016.

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