Own that ink: Tattoo copyrights matter for athletes, sponsors

Professional athletes often identify life challenges or startling events in their lives through artistic imagery on their bodies. The names and likenesses of family members or friends are often featured in tattoos. Others display the unique talents of the artist whose work is embodied in a particular tattoo. Like a writer who copyrights his stories, or a musician who protects his compositions, a tattoo artist might also take action to protect his work.

We have seen and will continue to see lawsuits arise and that inspire tattoo artists to bring about creative theories of copyright infringement against professional athletes who appear in advertisements. At a minimum, professional athletes need to tackle and meet head-on many copyright issues if they wish to avoid costly legal action associated with tattoos.

Conventional wisdom and custom suggests that both the professional athlete and tattoo artist discuss ideas, designs and the eventual artwork prior to the transfer of the artwork to the skin. However, U.S. copyright law denotes that ownership of artwork must be assigned, licensed or written into contract via transferring ownership and there must not be any copying, reproducing, or distributing or publicly displaying copyrighted work without the tattoo artist’s consent.

In the event ownership is not properly transferred, a tattoo artist may file a claim alleging copyright infringement and seek profits, a share of the revenue associated with an advertisement, or an injunction seeking to stop the use of the tattoo in the accused advertisement.

Companies often sign professional athletes to lucrative endorsement contracts for the sole purpose of the athlete delivering brand awareness and consumers assimilating the product with the athlete. As social media continues to explode, advertising budgets are growing and companies are seeking out athletes to market their products. Shoes and various forms of apparel are prime examples of the product tied to the athlete; thus consumers see the athlete and the company as one. The same rule applies to tattoo artist ownership and athletes tied to marketing a product. However, at times, history suggests that rights are not appropriately transferred from the tattoo artist to the individual prior to the marketing campaign surrounding the athlete, resulting in a potential costly litigation.

A tattoo artist’s lawsuit against Rasheed Wallace (above) is a reminder to all athletes who have visible artistic imagery on their bodies of the importance of design ownership and copyright protection. Photo by: GETTY IMAGES (3)

Former NBA player Rasheed Wallace saw firsthand when tattoo ownership is not properly transferred from the tattoo artist to the individual prior to the launch of a marketing campaign. In Matthew Reed v. Nike Inc., Wallace and Reed met to discuss a tattoo incorporating an Egyptian-themed family design on Wallace’s right arm. However, before inking the tattoo, Reed failed to transfer ownership of the artwork or rights in the tattoo design to Wallace. Wallace was then highlighted by Nike in an advertising campaign, along with the tattoo designed by Reed. Upon seeing the commercial advertisement portraying his artwork, Reed filed an application to register copyrights relating to the tattoo and filed a complaint in U.S. District Court for the District of Oregon against Nike and Wallace alleging copyright infringement. The case was dismissed pursuant to a confidential settlement agreement, but this example highlights the possibility of legal action associated with the lack of transferring ownership and companies promoting athletes without concrete consent from all possible parties involved.

So what exactly can be done so that professional athletes are protected when promoting a product in a marketing or advertising campaign and have visible artistic imagery on their bodies?

First, there needs to be a written contract in place stating that ownership was properly transferred or assigned from the artist to the individual, to eliminate risk associated with copyright infringement. Second, in the event that the tattoo happened months or even years ago without a valid transfer of ownership, check with the U.S. Copyright Office for any registrations naming the tattoo artist or business where the tattoo artist works to see whether a transfer of ownership can be obtained. Finally, upon receiving transfer of ownership of the tattoo, the work of art should be registered with the Copyright Office to receive the copyright certificate of registration.

Steven Olenick (steven.olenick@snrdenton.com) is a lawyer, educator and an expert on various sports law issues.