LeBron James, as many of you know, has dozens of tattoos. His mother’s name, Gloria, rests on a crown on his right shoulder and his forearms bear a portrait of his son LeBron Jr. and 330, an area code for his hometown, Akron, Ohio. Although those tattoos have personal connections, they may not truly be his.
When people pay to get a tattoo, many of them mistakenly think that the payment automatically transfers the copyright, and that this person now owns the artwork. Ownership of the copyright is, however, distinct from the ownership of any material object that embodies that work. Ideas are not copyrightable, but the expression of the idea is, if a work can be protected under copyright law; the default legal standard is that the person who created the work owns the copyright. The Copyright Act of 1976 (provides the basic framework for the current copyright law of the USA) protects the original works of authorship fixed in any tangible medium of expression.
In the future, it could be possible that when an athlete goes to get a tattoo, they will be required to sign a waiver with provisions stating that the artist retains the copyright of the design of that tattoo. For athletes and other celebrities, it is just something to think about before getting a tattoo. The main argument surrounding litigation is whether the tattoo design is copyrightable, and if that is the case, what rights do the artist have if the waiver is silent, and there was no separate agreement.
Yolanda King, a professor of Intellectual Property Law at Northern Illinois University College of Law, stated that:
From a business perspective it would be more feasible to strip them from the game, or to put some designs in the public domain on their bodies.
Although that would solve the whole problem, it would be a departure what publishers, like 2K Games, try to accomplish with their games, which is to try to replicate athletes as accurately as possible. Athletes are not likely to support this approach either, like LeBron James wrote in a declaration of support for Take Two and 2K Games:
My tattoos are a part of my persona and identity, if I am not shown with my tattoos, it would not really be a depiction of me.
Video game companies pay to license copyrighted music. Theoretically, they could obtain the licenses to the tattoos as well, although they would most likely want to avoid the cost and the logistical burden of negotiating with each separate artist for rights to their tattoos. Player’s Unions license the players’ likenesses to video game publishers, and they have advised athletes to secure licensing agreements before they get tattooed. Most artists have an incentive to sign rather than pass up a client who would provide publicity for their work. Therefore, participants in the sporting industry like the NFL players’ Association (NFLPA) are already requiring their athletes to get the artist to sign a work-for-hire agreement, waiving the artist’s rights to the tattoo. Both sides will most likely want the other to sign an agreement, and getting tattoos will likely lead to negotiation, or at least a discussion to be had, before getting a tattoo.
Athletes have a right to monetize their image rights, and the artworks on their bodies are considered part of their image. The problem does not seem to be when athletes with tattoos appear in magazines or on television, the right to this also falls within the category of an implied license. The problem seems to be that when the image of these athletes is digitally reproduced in videogames or movies there is an infringement on the artist’s right to reproduction.
Michael A. Kahn, a copyright lawyer who represented the designer of the face tattoo on the boxer Mike Tyson, said:
Video games are an entirely new area. There is LeBron James, but it’s not LeBron James. It’s a cartoon version of him.
The situation in the USA is different than in most European countries, because moral rights are not protected in the US, as they are in many civil law countries. If moral rights were to be protected, the artist could assign the economic rights and then waive the moral rights if he/she wishes. Moreover, moral rights (like having your name mentioned as the author) can never be assigned to another person, only waived if the artist wishes to do so.
But if the case went to court, what amount of damages can be expected to be compensated? Determining actual damages is difficult in copyright cases, however. In a lawsuit against the game developer and publisher THQ, which dissolved in 2013, a tattoo artist sought $4.16 million after his tattoo was used in the UFC Undisputed games. A bankruptcy court judge decided that the tattoo, a lion on the right side of the fighter Carlos Condit, had a value of $22,500, and the parties reached a confidential settlement.
Thus, we can conclude that a tattoo is a work protected by copyright. The tattoo artist acts as an artist who creates his own picture. Therefore, athletes should be very careful about the "use" of their tattoos, and it is best, as mentioned above, to conclude an agreement with the tattoo master before getting a tattoo.
Sources: https://lexsportiva.blog/2019/12/10/tattoos/ ; https://www.nytimes.com/2018/12/27/style/tattoos-video-games.html