Tattoos have become increasingly popular in recent years, although they have existed for centuries. In fact, let us bear in mind that, according to current estimates, there are now more than two billion people in the world who have at least one tattoo.

Tattoos represent a form of personal expression, art, and sometimes even a form of borderline advertising.

However, what would happen if, for example, someone decided to use your tattoo without your consent? Well, problems related to copyright can arise even with tattoos.

Copyright and tattoo: who owns the rights?

Indeed, there is often a misconception that the individual who gets a tattoo also automatically owns all the rights to it. Too bad this is not the case most of the time.

In fact, the rights usually belong to the artist who created the tattoo (unless, the parties do not agree otherwise), provided, of course, that the tattoo meets, like any other work protected by copyright, the standards of originality and creative character.

It is crucial to understand that copyright protection applies only to original works and custom tattoos and does not cover generic designs commonly found in catalogs or widely available online. Originality, in fact, is the primary factor in determining whether or not a work is eligible for legal protection. In contrast, the “bearer” of the tattoo may own the “physical” tattoo, but the copyright of the design remains, as we have seen, with the artist (like for any other work of art).

Overall, tattoo ownership involves a balance between the artistic expression of the author and the right of the work’s recipient to bodily autonomy, and this, as we shall see, can raise a number of critical issues.

In any case, it follows from authorial protection that the artist is entitled, inter alia, to the right of economic exploitation as well as distribution of the tattoo. The artist’s exclusive rights are thus threatened if another party attempts to use the same work without first obtaining his or her permission, which, often times, is formalized and crystallized in the form of a licence. This means that the artist, for example, can charge royalties for the replication or reproduction of the actual design in other media.

Thus it is not surprising that copyright infringement cases involving tattoos are becoming increasingly common. From clothing companies to film studios, many entities have used tattoos without proper authorization, fostering the onset of legal battles, requests for compensations and even cases of reputational and image damage.

The Precedents

Two emblematic examples include the dispute between Solid Oak Sketches, LLC Vs. Take-Two Interactive Software and the affair concerning the NBA professional athlete LaMelo Ball. 

Tattoos in NBA 2K videogames

With regard to the former, in its ruling of 26 March 2020, the U.S. District Court for the Southern District of New York addressed this matter, setting a significant precedent.

The Court examined the case in which the likenesses of three NBA players (namely: Eric Bledsoe, LeBron James, and Kenyon Martin) were used in a basketball video game without any licence for the tattoos included in such representations. The main issue thus concerned the violation of the copyrights on the tattoos depicted on the NBA three players, held by Solid Oak.

In a nutshell, the judge denied Solid Oak request and based her decision on several key factors, including:

1. De minimis Copyright Violations: The Court recognized that copyright infringements that are minor may not be actionable. In the case at hand, tattoos were only visible up to 11% of their actual size in the video game, thus reducing the extent of the alleged infringement.
2. Implicit Non-Exclusive Licences: The court pointed to the existence of non-exclusive implied licences between tattoo artists and basketball players, suggesting a kind of implicit agreement for the use of tattoos in media, including video games
3. Fair use: The Court held that the uncontroverted evidence demonstrates that all four factors ( i.e. (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work). weigh in Defendants’ favor, and no reasonable fact finder could determine that Defendants’ use of the Tattoos in NBA 2K was not fair use.

Although tattoos are considered works of art and enjoy copyright, their peculiarity in being applied to the human body can generate complexities related to Intellectual Property rights. As anticipated, for example, issues arise when the owner of the body does not own the copyright of the work (the tattoo) or when the tattoo is a counterfeit copy of a third-party copyrighted work.

In addition, if tattoos represent identifying elements of a culture, questions of cultural appropriation might arise. Therefore, it is crucial to consider both the rights of the subject represented and the rights of the copyright holder of the tattoo.

This case illustrates the importance of carefully evaluating Intellectual Property rights when creating video games or other media in which tattoos are included. Clear agreements and proper licences are essential to avoid legal disputes and protect the rights of all parties involved.

Tattoos copyright: the LaMelo Ball case

Also related to the U.S. professional sports world, is the wide controversy stirred by the NBA, decision last November to “have” the tattoo depicting the “LF” trademark placed on the left ear of athlete LaMelo Ball “covered” with a band.

Specifically, according to the governing bodies of the sports association, the tattoo in question was considered  to violate the “Collective Bargaining Agreement” (the collective agreement entered into by NBA players), as it would represent the logo of said athlete’s clothing line; in fact, according to Art. 538, Paragraph IV of the Collective Agreement: “a player may not, during an NBA game, display any name, trademark, logo or other commercial, promotional or charitable identification, including, but not limited to, on the body, hair or otherwise.” It can be inferred from the literal tenor of the above legislation that the NBA has purposely envisaged the prohibition for any athlete to be able to exploit tattoos to commercially promote their brands.

For his part, Mr. Ball defended by arguing that the tattoo contained no reference to his own clothing line, instead representing the initials “LF” of his middle name: LaMelo “LaFrance” Ball.

Last January, the NBA, without releasing the reasons, “reversed” its own decision, allowing Mr. Ball to keep the disputed tattoo uncovered.

Having reached this point, regardless of the outcome of the case, it is absolutely clear that there is an ever-growing interest developing around this issue.

Conclusions

In conclusion, the infringement of Tattoo Copyright is a complex issue that requires reflection on two points, the rights of the artist and those of the “customer”. In this writer’s opinion, and with the increasing popularity of tattoos, it becomes more important than ever for both parties to be aware of their obligations and thus create an ever-increasing awareness of the issue, while trying to keep the occurrence of potential disputes to a minimum.