That question is prompted by an ongoing copyright infringement lawsuit in New York, one of only a few suits to raise the legally murky issue of whether companies like movie and video game studios must pay to license the the work of tattoo artists the way they would pay for using a pop song, even if that tattoo is permanently inked on a person’s body.
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This article is really interesting because it's something I don't think most people would think about, even those who have tattoos. The work of body artists has never generally been considered in the same way as traditional art or photography, and while I think it's important to consider their rights, I also think there do have to be limits and differences between the copyright on a picture hanging in a gallery and on a tattoo on a celebrities shoulder. It's an art form but also something like wearing clothing, a way for a person to express themselves in a permanent way. You don't credit the barber who gives Miley Cyrus a haircut in each photo, or pay the designers of the clothes Kim Kardashian wears whenever she's in a newspaper, so tattoos should fall under the same category - yes, we know someone made this or did this, but it's not theirs anymore - the person who has the tattoo has, like the article states, "implied license". While as ab artist I'd love to get money for my work if it were tattooed on someone, it also would be unrealistic and annoying for everyone involved and be more trouble than its worth for the person who had the tattoo done in the first place.
This article raises interesting questions regarding not only original artistic property, but professional athletes' right to express themselves. We live in a day and age where the definition of "freedom of speech" and where we draw the line between what counts and what doesn't is becoming more and more important. In a time where white supremacists tout "freedom of speech" while inciting violence, and protesters are unwelcome at the attorney generals "freedom of speech" event, the stark conflicts over this issue are becoming ever clearer. Athletes play an interesting role in this debate, as they are both icons that our people look towards as examples while also being financially beholden to massive vested corporate interests. How much freedom can an athlete have, when they aren't even given the right to choose what they wear, or imprint on their bodies? If current events are any indication, with the widespread NFL protests and other movements for reform, the tides may be changing.
Although I understand the importance of protecting an artist's right to their copyright this seems more like a money grab to me than a legitimate legal case. The fact that they're trying to claim that James doesn't own his own body honestly seems ridiculous. Personally I feel that most tattoo artists understand that while they do hold the copyright to their work they are giving ownership to the person who will have it for the rest of their lives. If this video company loses their case this may set a dangerous precedent. Will tattoo companies start suing painters if they decide to create a portrait of someone with a tattoo? Will they sue film producers for making a movie with an actor who doesn't cover up any tattoos they have? Maybe a compromise could be to give the tattoo artist some sort of credit within the video game, but I think that even that is a slippery slope to something much more restrictive.
I honestly have no idea what I think about this. I see the argument both ways. There are certain situations that I see as pretty clear cut. For example, I don’t think ESPN should need to pay rights for LeBron James’s tattoo for airing him playing in a game. To me, that would be obviously absurd. I also think if someone hires James to be in an ad, that company should not also have to pay right for his tattoo, unless the tattoo is clearly central to the ad (ex: a close up shot of the tattoo). I don’t know how I feel about this video game though. On one hand, it seems like more or less the same principle as airing footage of James playing in a game, or at the very least the same principle as having him appear in an ad. On the other hand, because the game is animated, the animators reproduced the tattoo as part of the animation. In theory they could’ve created an animation of James without the tattoo, they didn’t strictly NEED the tattoo to have his likeness in the game. If I had to make a call I would say the game shouldn’t need to pay for the rights to the tattoo separately because the tattoo is just part of James’s likeness and the tattoo design isn’t really what they are selling, but I’m really on the fence.
This is such an interesting argument because in every other setting, we would of course say the the artist owns the right to say how his or her art is shown in the world. But with something that is on your body and so goes where you go, it becomes really hard to control that access. And in a world where it is so easy to take pictures and upload them anywhere, I know this is a real problem in the art world at large. It’s an even stranger issue because if you are famous and want a tattoo, if the ruling goes through that you have to ask the original artist to use their work and potentially pay a royalty on it, there is a whole other layer to simply getting a tattoo. It means that when you go into the shop, you know that you are going pay this person beyond just the original cost is a little daunting. But it happens all the time with designs, especially in the theatrical context, so it really should extend to all artists. But it is rather a slippery slope.
I have never thought about this issue before. Tattoos are obviously works of art and, when you think about it, the designs probably should be copyrighted. Currently there is an unspoken agreement that an artist should not copy another’s tattoo design. Tattooed people will readily credit the artist or the studio for each specific tattoo. Most people who get tattoos are also looking for an original piece that is unique to them – some even bring in their own designs or sketches for the artist to work from. I believe that this social construct is protection enough for artists, in terms of infringing upon the rights of others. I don’t think it is realistic for this studio to sue on copyright infringement against the video game. The tattoos are a part of Lebron’s likeness. Tattoos are an easy way to identify people (I have described my friends and classmates so many times by the tattoos they have). They are not hung on a wall in a museum where only selected people can view them. Tattoos are visible and travel with you every day. It may be fixed format but the artist has no realistic way of controlling where and how their work is presented in the future. I don’t think they should be formally copyrighted.
In general, I find the question of copyright of tattoos really interesting. First and foremost, I fiercely believe that any artist deserves the right to have the copyright to their work and to be fairly compensated whenever their work is used. However, the question of copyright for a tattoo becomes fuzzy for a couple reasons, first and foremost because it is on a living canvas whose actions the artist cannot (and has no right to) control. Secondly, creating the design for a tattoo is rarely something done by just one person. Often the artist and the client collaborate to create the final design. I am preparing to get a new tattoo over mid-semester break, currently, I am making a sketch and pulling reference images which I will send to the artist in advance, then they will make a final design which I will look at, possibly tweak, and approve when I go into my appointment. Once the piece is on my body, it is not particularly cut-and-dry which of us should own the copyright to the design. But moving beyond that gray area, if one assumed the artist holds the copyright, the question of when copyright should be paid is still nebulous. I discussed this article at length with Julian and we are both still undecided on this issue. I am leaning to the option that the video game designers should pay the copyright because they reproduced the design, and obviously if the design was reproduced in the real world on another person's body that would be a clear copyright violation.
This article makes me think about the flip side, situations when people get tattoos of artists work. I doubt many people get permission from the original artist, whether it is an artist they have followed for a long time, or they just searched “cool lion face art” on Google Images. If I were an artist and I discovered that someone had a tattoo of my art without permission, I do not know how I would feel. Flattered or unnerved? Or both? If it was a piece I was proud of? If it was a piece I actually hated? Who knows. Following the artist Valfre on Facebook and Instagram, I see her art pop up pretty frequently. Every once and awhile, she’ll post pictures of people with her girls tattooed on them. I just wonder how different artists react to having their art turned into a tattoo, maybe without permission. I know a lot of people would wonder what the harm is, but creative property and learning to respect it is important.
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