This week’s post discusses a growing lawsuit trend in the entertainment industry. Namely, tattoo artists suing content producers when the work they tattooed upon a famous individual is reproduced in a movie, video game, etc. The trend began a few years ago when the artist responsible for tattooing Mike Tyson’s face sued Warner Bros. before the release of The Hangover Part II. The basis for the artist’s claim was the movie recreating Tyson’s tattoo on Ed Helms' character’s face. The case ended up settling out of court, and there was no ruling on the extent of copyright protection for tattoos being reproduced in other forms of media.
Recently, a company sued the maker of the NBA 2K video games for copyright infringement for recreating NBA players’ tattoos in the game. Due to a favorable initial ruling for the video game maker reducing its possible liability, the game maker is asserting some strong claims against lawsuits of this type, including that the use should be considered a fair use and is a de minimus use, meaning it's too trivial to merit consideration. It would be helpful to have judicial decision directly addressing the issue of recreated images of tattooed individuals.
Personally, I find this trend, and the mere fact that these lawsuits exist, annoying. While I’m inclined to acknowledge some tattoos can be creative enough to merit copyright protection, I cannot comprehend copyright law being used to sue third parties because they recreated a true-life representation of the tattoo artist’s client in some form of media. With the prevalence of tattoos on many people, the risk to content producers can be very high unless they take precautions to protect against such lawsuits. The primary methods to avoid being sued are to seek a license from the tattoo artist, have the tattooed person seek permission and/or indemnify you, or do not reproduce tattoos at all.
Hopefully, the courts or congress (yeah, right) will address this issue and clearly define the copyright rights of tattoo artists and their patrons as it relates to portrayals in media. It seems to me if a patron obtains a tattoo he should be allowed to be photographed or otherwise reproduced without having to receive the tattoo artist’s permission. It should be an assumed part of the deal—an implied license for the patron to give consent to others who are reproducing his image. Copyright law should not be used to prevent someone from being truthfully depicted in various forms of media just because he is tattooed.
As of right now, there have not been any lawsuits in the comic book world, but if you are in the habit of drawing famous tattooed people, or otherwise drawing tattoos on individuals in your work, you should proceed carefully.
For more on the NBA 2K lawsuit, read The Hollywood Reporter story here.
Side note: If you’re famous or on a career path where your image will be reproduced and you want to get a tattoo, you may want to have the artist sign a release giving you complete control over the design and reproduction rights. Your production partners will thank you.
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