Who Owns LeBron James’ Tattoos?
One day you’re feeling brazen, or perhaps temporarily “insane,” and you walk into a tattoo parlor to get inked. Congratulations, you are the proud owner of the art now displayed on your skin and you can flaunt it however you wish—or can you? There’s the tattoo as a design, and then there’s that same tattoo after it’s inked on your arm. Tattoo artists often register copyrights for their tattoos, but does copyright law protect that image once it is inked on your body?
A growing body of case law and high-profile lawsuits suggest that, ultimately, it’s the tattoo artist—not the person sporting the tattoo—who owns the rights to that tattoo. In a 2011 federal court case, a tattoo artist sued Warner Bros. for copyright infringement over the use of Michael Tyson’s facial tattoo in the movie, The Hangover: Part II. In the film, a character becomes intoxicated and wakes up with an exact replica of Tyson’s tattoo on his face. Warner Bros. argued that use of the tattoo was simply parody and fair use, but the federal judge disagreed, stating “of course tattoos can be copyrighted….there was no change to [Tyson’s] tattoo or any parody of that tattoo itself.” Unfortunately, for the sake of copyright law, the case settled out of court without a direct ruling on the copyright ownership of tattoos.
The NFL Players’ Association has warned players to seek copyright waivers from their tattoo artists to guard against lawsuits if the tattoos are used—inadvertently or not—in advertisements, video games and other media. Lawyers foresee copyright waivers becoming a fixture in tattoo parlors.
Now the courtside question: is it fair or foul to show a player’s tattoo in a video game? In an age where video games are nearly indistinguishable from the real-life HD sporting events they recreate, attention to detail is vital. LeBron James is a 3-time NBA Champion, 13-time NBA All-Star, and he played himself in the movie, Trainwreck. He sports several tattoos, one of which—the Lion’s Head Tattoo—was created by an artist who assigned his copyright in the tattoo to Solid Oak Sketches. Solid Oak sued Take-Two Interactive Software for copyright infringement, claiming it is a technical foul to display the copyrighted tattoo on LeBron’s arm in the popular NB2K line of video games.
A trial is looming, and a decision as to whether tattoos are copyrightable may be made as early as December. Basically, the issue boils down to whether the skin on the human body is a permissible expressive medium that qualifies as a canvas for copyrighted work. U.S. copyright law protects “original works of authorship fixed in any tangible medium of expression” that is “sufficiently permanent or stable to permit it to be perceived, reproduced or otherwise communicated for a period of more than transitory duration.” Solid Oak claims that LeBron’s flesh constitutes a “fixed medium” for his tattoos, as the designs are imprinted permanently on the skin, clearly stable and perceptible for more than just a momentary duration.
Take-Two, on the other hand, posits that, if tattoos are protected copyrights, public figures like LeBron James must seek permission from the tattoo artist each time they appear in public, film or photographs. The renowned legal scholar on U.S. Copyright Law, David Nimmer, also suggests that the copyright holder theoretically could sue somebody to block the removal of a tattoo. Thus, he argues, “Copyright law thereby becomes the instrument to impose, almost literally, a badge of involuntary servitude, akin to the mark with which ranchers brand the cattle they own.”
Plenty of ink has been spilt on whether tattoos can be copyrighted—and all of that ink, ironically, is copyrighted by default. But whether ink on human flesh is subject to copyright protection is another story—and, in LeBron’s case, a new chapter is about to be written.