Indelible Image:Tattoo Artists Sue to Copyright Athletes' Body Ink

You thought that because you paid for that ink and that it is, after all, on your body, it belongs to you?  How quaint.

Once supposedly amateur athletes successfully sued for the right to be paid for the use of their image on video games it was only a matter of time before everyone else tried to cash in. And, so far, they are winning.

The initial battleground, once again, was the video game arena in which Electronic Arts and others, in their attempts to provide customers with evermore realistic scenarios, included athletes' recognizable body art. But it quickly became apparent that the tattoo artists were not going to let this opportunity pass. The use of former boxer Mike Tyson's tattoo in the movie The Hangover, Part II and the notoriety of star athletes' tatts led straight from arena to the screen - via the legal system.

There are some rules to what gets covered by the law and what doesnt, but the upshot is that EA and other video game companies are now eliminating body art from the game avatars they create unless explicitly licensed to do so. And they - and the various sports leagues with whom they contract - are now advising athletes to secure those rights or negotiate some sort of agreement.

Our bodies, ourselves...and our intellectual property attorneys. JL

Jacob Gershman reports in the Wall Street Journal:

U.S. District Judge Catherine D. Perry said "Of course tattoos can be copyrighted, I don't think there is any reasonable dispute about that."

Randy Harris worries that lawyers are leaving a stain on the tattoo world.

A court tattooist to basketball royalty, Mr. Harris says he has inked dozens of NBA players, drawing everything from a giant tree on Dallas Mavericks guard Monta Ellis, to a beady-eyed owl on Washington Wizards point guard John Wall, to a basketball-toting angel on Oklahoma City Thunder forward Kevin Durant.

Recently, he has found himself shaking his head at the litigious direction of his image-conscious occupation as the question of who owns a tattoo has become a source of tension.

To him, it's simple: "Once they paid for the tattoos, man, they paid for it," he said from his shop south of Atlanta.

Other tattooists say the issue isn't that clear, especially in the case of sports videogames, which digitally re-create not just the bodies of athletes, but often their body art as well.

Phoenix-based tattoo artist Chris Escobedo took an intellectual property rights training course and in 2012 sued now-bankrupt videogame developer THQ Inc. over a mixed-martial arts game in which one of his tattoos—a large, scowling lion on the right rib cage of Ultimate Fighting Championship star Carlos Condit—makes a cameo appearance.

Last year he settled the lawsuit for an undisclosed sum, he said.

"They're doing it without consulting the original artists, and that's what makes it illegal," he said. "I'm the little guy in this situation."

Such lawsuits have left a mark. When videogame giant EA Sports, a brand of Electronic Arts Inc., developed its own fighting game featuring Mr. Condit, which will be released this week, it left out the lion, causing gamers to growl. Electronic Arts declined to comment.

"That tattoo artist must feel he now owns a portion of carlos condits rib cage too huh?" wrote one fan on an EA online forum after seeing early screenshots.

Mr. Escobedo, 35 years old, said gamers sent him hate emails and attacked him on his Facebook page after news broke of his lawsuit. He said he has known Mr. Condit since the latter was a teenager, but the litigation has spoiled their friendship. The sports-management company representing Mr. Condit declined to comment.

The question of who owns the copyright to a tattoo has never been settled in court, but lawyers and scholars say there is no obvious reason why tattoo artists shouldn't be covered by the same rights granted to photographers or other visual artists.

To be copyrightable, artwork needs to have some originality. It also has to be "fixed in a tangible medium of expression." That can be a canvas, film or audio. Skin counts, too, in the case of a custom tattoo designed by an artist, said Case Western Reserve University law professor Aaron Perzanowski, who teaches intellectual property law.

A turning point in the debate was a lawsuit over the 2011 summer blockbuster "The Hangover Part II,"″ in which a character awakens after a night of debauchery to find a replica of Mike Tyson's widely recognized Maori-inspired facial tattoo etched on his own forehead.

The Missouri tattooist who designed the image, S. Victor Whitmill, sued Warner Bros. Entertainment Inc. for copyright infringement, claiming he was owed for contributing to a key punch line.

While allowing the film's release, U.S. District Judge Catherine D. Perry, who presided over the case, was sympathetic to his argument. "Of course tattoos can be copyrighted," she said. "I don't think there is any reasonable dispute about that."

Los Angeles attorney David Nimmer, an expert witness retained by Warner Bros., disagreed. He said that recognizing tattoo artists' copyright claims would set a troubling precedent. "Congress never contemplated that flesh could embody a copyrightable work," Mr. Nimmer said in a brief submitted to the court in 2011.

Warner Bros. told a judge it was prepared to digitally erase the tattoo in the DVD version if the litigation dragged on, but it ultimately settled.

Copyright lawsuits by tattoo artists are still fairly unusual. "We're hired to make a piece of art and give it to someone," said Megan Wilson, a tattooist from San Jose. "To say we own it at that point is kind of absurd."

But some media companies and sports groups aren't taking any chances.

The NFL Players Association, which licenses images of the players to EA, has started encouraging athletes to obtain licenses for their body art. "We advise players to do that so they don't have to go through any of the potential litigation," said George Atallah, a spokesman for the union.

EA played it safe it when it incorporated San Francisco 49ers quarterback Colin Kaepernick's tapestry of tattoos into the latest installment of its popular Madden NFL videogame series.

EA Sports recently tweeted out teaser screenshots of "Madden NFL 15"—coming out in late August—that showed a digitized rendering of the 26-year-old star bearing the same snippets of psalms on his arms that he flaunts on the field. EA says it scanned images of his tattoos only after getting legal authorization from the artists who drew them.

"Regarding artists and forms, we can't comment on the specifics, but we're comfortable with the process," a spokesman for EA said.

According to Jason Bernstein, Mr. Kaepernick's agent: "The releases obtained from the tattoo artists transfer and assign to Colin all rights, title and interest in/to the tattoos that the artist has engraved on Colin's body."

Orly Locquiao, a tattoo artist in San Jose who drew the Polynesian tribal symbols adorning Mr. Kaepernick's chest, says he didn't put up a fuss when the player's agent asked him to sign the release form.

"All in all, it's business, but I didn't want to worry about it too much," he said.

Mr. Harris says in his own case the perks of the job are more valuable to him than residual income. His Instagram and Twitter accounts show photos of him fishing and hanging out courtside with clients.

He says any tattooist who wants to attract the patronage of a star should steer clear of a courthouse. "They'll send text messages to each other, and it would just kill you," he said. "They don't want to look over their backs and think somebody is going to sue them."