NFL Players Association Freaks Out About Tattoo Copyrights

from the what-are-you-inking? dept

Fri, Sep 13th 2013 3:20pm — Timothy Geigner

You'd think with all the threats facing the NFL and American football, such as Twitter-spoliers on draft picks and the impending SkyNET takeover, the powers that be in America's most-watched game wouldn't have time to deal with more minor threats from non-sentient-destructo-machines, but here's the stupidity of copyright on tattoos to prove me wrong yet again. You may recall that former athlete/tattoo issues have included Mike Tyson's face being visible in The Hangover 2, as well as UFC fighter Carlos Condit being depicted accurately in a THQ game.

Well, this nonsense hasn't gone unnoticed, and the NFL Players Association has taken a firm stance that it will run the hell away from any licensing issues that arise from their members' tattoos being depicted in any form of media. Featured prominently in Forbes' analysis of the issue is Colin Kaepernick, quarterback of the 49ers and a man that has done more to combine ink and flesh than an all-squid orgy.

The question is no longer whether the tattoos that cover Kaepernick's body will detract from his brand; the fear is that it could lead to future liability not only for the signal-caller, but for all other NFL players who are inked up. The ink issue is over who owns the copyright to the images depicted by the tattoos emblazoned on athletes' bodies. According to sources speaking to FORBES on condition of anonymity, the issue of copyright ownership concerning tattoos on football players has very recently been labeled as a pressing issue by the NFL Players Association. One source said, “I don't blame [the NFLPA], but they should have been on top of it earlier. It was something that was mentioned at the NFL Combine — that was the first I had ever heard them mention anything on the issue of tattoos. They advised agents to tell their players that when they get tattoos going forward they should get a release from the tattoo artist and if they can track down their former artists, they should get a release.”

And if they don't, or can't, get said release? Well, the NFLPA is then going to require that players agree to release the NFLPA from all litigation claims. Not only that, but likewise the NFLPA will seek to “indemnify and hold harmless” any of its licensees as well, such as EA Sports' Madden NFL franchise.

And that's really the shame of the story, because there's a potentially really interesting legal case to be fought here, and if anyone had the financial resources to push things along that far, it'd be the large group of millionaires that make up the NFL Players Association. Instead of pressing the issue, NFL players are instead left holding the liability bag, wondering whether or not they can make money off of their own freaking image, which is the kind of question that would convince me personally that I must be trapped in some 7th circle of the stupidest Hell imaginable. It's especially silly since, as Forbes notes, it's not remotely clear that gaming and media companies wouldn't be in the clear to use these depictions anyway.

Defenses based on fair use and that the tattoo has become a part of the recipient's persona for the purpose of the recipient being able to effectively license his likeness may be applicable. It is difficult to fathom that those responsible for drafting the Copyright Act intended to legally prohibit individuals adorned with tattoos from making public appearances or endorsing products without covering up their ink. But nobody wants to take the risk of appealing to the spirit of the law.

On top of that, you'd think that the players themselves, and the organization that represents them, would be interested in fighting back against any copyright claim, not just because of the monetary liability but because of Section 503, which notes that one of the remedies for infringement is that the court can order that the infringing product may be "destroyed." And while fans of, say, the Seattle Seahawks, might like the idea that Colin Kaepernick's arms may need to be "destroyed," that seems like something that the Players' Association might want to take a stand on.

Stated more honestly, this is yet another example of how copyright has gone so far and above its intent as to be unrecognizable by those that put it in place. And nobody wants to fight the fight, which means we'll likely either get a tidal wave of stupid lawsuits over tattoos or less-accurately depicted athletes in games and media. Way to go, copyright.

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Filed Under: copyright, football, tattooes
Companies: nfl

36 Comments

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BentFranklin (profile), 13 Sep 2013 @ 3:23pm

You'd think a tattoo would be a work for hire if anything is.
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Anonymous Coward, 13 Sep 2013 @ 3:39pm

Mike, as an influencer, please consider using the appropriate form of these terms:

copywrong not copyright
IP = Industrial Protectionism; IP != Intellectual Property

Thank you in advance for your cooperation, matey!

TPP
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Anonymous Coward, 13 Sep 2013 @ 4:13pm

"...a man that has done more to combine ink and flesh than an all-squid orgy."

[citation needed]
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Aaron Perzanowski, 13 Sep 2013 @ 4:29pm

Lawsuits that target displays of clients' tattoos remain incredibly rare, even when the client is an athlete or celebrity.

That's largely because tattoo artists recognize that literal application of copyright law is inconsistent with their values and the informal norms that continue to govern their industry. Most tattoo artists simply reject the notion that they should have any say about what their clients do with their tattoos.

I've written about the informal copyright norms of the tattoo industry in an article forthcoming in the Minnesota Law Review and available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2145048.

The tattoo industry as a whole seems to understand implicitly that aggressive copyright enforcement is probably bad for business, a lesson perhaps other industries should consider.
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Haggie, 13 Sep 2013 @ 5:00pm

I would assume that even if the tattoo artist owns the copyright to the actual artwork, he or she gives the tattoo wearer an implied permanent license when the tattoo is applied to the body.
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Hugh Mann (profile), 13 Sep 2013 @ 5:02pm

Maybe copyright isn't the real problem here . . .
More than demonstrating any perceived negative extreme of copyright, perhaps it is more importantly one more indication that tattoos are kinda dumb, and really worth thinking twice about before asking some guy to jab you repeatedly with a needle filled with a foreign substance in a manner that will mark you so prominently and permanently.

In any case, if you're going to have yourself marked that way, it sure doesn't seem unreasonable that you should be the one responsible for any issue that arises for someone else as a result. And if the argument is that the NFLPA should be able to easily prevail against any such copyright claim, then the tatted-up players shouldn't have any problem with signing up to release and indemnify the NFLPA and all other relevant parties.

HM
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Ah, the ramifications!, 13 Sep 2013 @ 5:15pm

The last gasp of a failing paradigm
This is only one of the many absurdities that copywrong law creates. At some point it will be too much, and a new paradigm will force the copywrong concept into the Museum of Incredibly Stupid Ideas.
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out_of_the_blue, 13 Sep 2013 @ 5:26pm

Not copyright. GREED by a legislated monopoly.
"Stated more honestly, this is yet another example of how copyright has gone so far and above its intent as to be unrecognizable by those that put it in place." -- Actually, you're some mix of lying and stupid, Timmy. To begin with, I bet you approve of and support the NFL. But NFL exists only by special legislation. It's a money machine that'd otherwise be illegal under anti-trust. This is not a free market under capitalism; it's a monopoly given to The Rich and their corporations. This has nothing to do with the everyday uses of copyright that directs deserved income to creators.

Techdirt's motto: The confusion has become so complete that it's beyond correction.
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Anonymous Coward, 13 Sep 2013 @ 5:26pm

Re:
Actually, he gives the tat-ee only a copy of the work, just as would be the case with one who purchases a book.
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Anonymous Coward, 13 Sep 2013 @ 5:31pm

Re:
17 USC 101, "Definitions", provides in pertinent part:

A �work made for hire� is�

(1) a work prepared by an employee within the scope of his or her employment; or

(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

Since it is highly unlikely in a typical case that a "work for hire" scenario exists, the only way for an "artist" to give up his/her rights (if any) to their "epidermal masterpiece(s)" is to have the transfer of such rights embodied in a writing signed by at least the artist.
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Kevin W, 13 Sep 2013 @ 5:32pm

Ive never understood the point
In an ever visibly increasing world of liability issues, how can one make themselves look more unemployable??
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Anonymous Coward, 13 Sep 2013 @ 5:32pm

Re:
I duck-snorted when I read that. Very funny!
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Anonymous Coward, 13 Sep 2013 @ 5:35pm

Re: Re:
Oh...and the odds that such a writing exists borders on...? "Zero" sound about right in most cases, but then again I tend towards optimism, so take my general prediction with a grain of salt. Less than zero is a more likely number.
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Anonymous Coward, 13 Sep 2013 @ 5:37pm

Re: Ive never understood the point
Try this on for size:

https://www.google.com/images?sourceid=navclient&ie=UTF-8&rlz=1T4GGHP_enUS498US499& amp;q=extreme+body+piercing&biw=1536&bih=698&sei=g68zUr8PhtL0BPOPgKAD
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Anonymous Coward, 13 Sep 2013 @ 5:43pm

So the players should only get NFL team logos & trademarks tattooed on themselves...no problems there, right?
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Anonymous Coward, 13 Sep 2013 @ 5:58pm

Tattoo procedures vary
Legally, it's the artists who are at risk -- realistically, the NFLPA, the NFL, or any of the media corporations would death-march-litigate any tattoo artist who sought to enforce a copyright into financial destitution.

In actual practice, it can be tough to determine who owns a tattoo copyright. Real example: Eric gets his artist friend Erin to work up a tattoo design. Eric has direct input into the initial design efforts (over multiple drafts, and bottled beers), but Erin has the talent. They are friends and there is no formal agreement. Eric gets a digital file from Erin, makes his small modifications, prints mockups of a variety of sizes, and considers where to locate the tattoo. Artist Dawn applies the tattoo, working in part from a trace, and adding her own small touches, and also contributes later touch-up work.

Arguing legalisticly, Eric, Erin, and Dawn could all own pieces of the resulting layers of copyrights -- but the only people who would profit from trying to work out the details are scumbag lawyers.
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Anonymous, 13 Sep 2013 @ 6:00pm

Re:
The NSA knows your Industrial Protectionism address.
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James Burkhardt (profile), 13 Sep 2013 @ 6:04pm

Re: Re:
Wouldn't my body upon which a collection of tattoos rests be considered a "Collective work"? Wether or not the tatoos come from multiple artists, the scars, nicks, hair pattern and other features of my body were not determined by the artist but prodive additional effect the greater landscape.
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James Burkhardt (profile), 13 Sep 2013 @ 6:10pm

Re: Not copyright. GREED by a legislated monopoly.
So i shot down lawyers so now you going to just handwave "greed", saying that copyright is just a symptom. Well then, since I am just as capable of being a greedy bastard as Bill Gates, how can we eliminate greed from every person on the planet so your copyright utopia can press on.

Or perhaps, we can modify copyright law such that it can continue to funnel money to artists while recognizing fair use and de minimus use in a stronger and broader context so that anomolies and greed stop being a weekly feature?
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Anonymous Coward, 13 Sep 2013 @ 6:13pm

Re: Re: Re:
Maybe. Maybe not. It depends.

Based upon the info currently known in your hypothetical, the above is a comprehensive and accurate legal opinion that is provided pro bono.
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Atkray (profile), 13 Sep 2013 @ 6:44pm

Re:
Right up until the first idiot gets a judgement.
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MrWilson, 13 Sep 2013 @ 7:12pm

Re: Tattoo procedures vary
I came here to bring this up. The assumption going on in this whole discussion is that the tattoo artist necessarily is the copyright owner, but it doesn't seem so clear.

Between the concept of derivative works, the Bridgeman Art Library v. Corel Corp. finding, and others, a tattoo artist would likely not be able to claim copyright on anything that is a derivative copy of another copyrighted work or any tattoo design that didn't originate with them since their act of applying the design to the skin is mechanical rather than creative. They are being paid expressly to ink as near a reproduction as possible of another work.

I have a tattoo that I designed and brought to the tattoo artist. He scanned it and printed it to tattoo tracing paper and then traced the design with his needle on my skin. He had no creative input on the tattoo itself. His participation was mechanical in nature. While I appreciate his participation, he can't claim copyright on the design when he only acted as a human printer.

Oppositely, we don't say that a person can't claim copyright on a design that they create on a computer and then printed out simply because the printer was the "creator" of the print out of the design. The printer is merely creating a derivative work.

But it seems that, in the case that the tattoo artist is actually the copyright holder, any tattoo artist would necessarily be granting a perpetual license to their paying customer for the display and even reproduction of the work, unless they had their customers sign a specific statement to the opposite. But even then, that clause would be unconscionable because you can't enjoin someone's free speech through the act of displaying a tattoo that they chose to get, which is indeed clearly an expression that would be protected by the first amendment.
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Anonymous Coward, 13 Sep 2013 @ 7:15pm

Perzanowski article
I'm about halfway through the Aaron Perzanowski article linked to above. It's really good, though necessarily limited in scope (not much about trademark law and tattoos, or about the commercialization of Ed Hardy and Sailor Jerry after death.)

Repeated: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2145048
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Anonymous Coward, 13 Sep 2013 @ 7:24pm

Re: Re: Tattoo procedures vary
You were generally on track until your last paragraph.

As you aptly note, there is always the possibility that the inker is merely replicating the work of others. Of course, if the adds some to the work that is in and of itself creative and separable from the original work, then the inker would in the first instance hold the rights to the separable work.

You are also correct re the tat you designed since the inker is nothing more than a repro machine.

As for perpetual license, obviously persons can always enter into contracts where they assume unusual obligations and receive unusual rights under the circumstances. If such a writing was in place reallocating the copyright "default", then you comment may very well have merit. Under the "default" however the only thing a tat-ee would get is a copy of the work, just like if they bought a book. The "default" grants no license under Title 17, though if the tat-ee is ever so inclined he/she could have the skin on which their tat appears surgically removed and then posted for sale on eBay. This is associated with the rule in equity known as the First Sale Doctrine.
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Anonymous Coward, 13 Sep 2013 @ 7:36pm

So you put images on yourself, then the entities who designed it demand they own that part of your body

Anyone who puts tattoos on themselves from this day out must be a TREMENDOUS fool. A fool of absolute blithering proportions. As far as I'm concerned, they are now slave stamps that don't come off.
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Anonymous Coward, 13 Sep 2013 @ 7:40pm

If you are a tattoo artist, when you put a tattoo on someone's arm you implicitly give a license to that person for reasonable use. That includes being able to have their arm visible in public and possibly photographed or filmed. The alternative is ridiculous.

If nothing else, any use that does not involve actually putting another tattoo on someone is CLEARLY transformative and noncompeting. "Tattoos" and "everything else" are two things that do not compete. Has anyone ever said "Gee, I like that tattoo on Colin Kaepernick's arm and want one like it... but since I have this picture of it, I'll just look at that instead of getting one."
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Anonymous Coward, 13 Sep 2013 @ 8:42pm

Re: slave stamps
Re: As far as I'm concerned, they are now slave stamps that don't come off.

Apparently Nimmer made a similar (13th amendment) argument as an expert in Whitmill v. Warner Bros., but the court rejected it. See Perzanowski (linked in this thread) pp17-18 for references.
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any moose cow word, 13 Sep 2013 @ 11:24pm

Re: Re: Re: Tattoo procedures vary
Despite what the law says, how can you logically argue that an artist who holds the copyright can apply a tattoo without granting an implied license for public display? Otherwise, you'd argue that it's the customer who granted an implied contract to surrender the personal right to public display a patch of his own skin! Sorry, but you must pick one or the other, you can't have it both ways.
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That Anonymous Coward (profile), 14 Sep 2013 @ 12:44am

Re:
"That includes being able to have their arm visible in public and possibly photographed or filmed. The alternative is ridiculous."

And yet the players can claim its part of their image rights and demand payments from people anyways.
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Anonymous Coward, 14 Sep 2013 @ 1:48am

Re: Re: slave stamps
Thank you for pointing that out for me.

I'm still in harsh disagreement with the court on that matter.
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Anonymous Coward, 14 Sep 2013 @ 3:28am

Re: Re:
Um, ok chiefy.
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Anonymous Coward, 14 Sep 2013 @ 6:28am

'this is yet another example of how copyright has gone so far and above its intent as to be unrecognizable' and how, as usual, Congress wants to carry on sitting around, thumbs up asses, brains in neutral, doing fuck all to improve the situation!!
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DogBreath, 14 Sep 2013 @ 9:37am

Time to stop the copyright insanity
On top of that, you'd think that the players themselves, and the organization that represents them, would be interested in fighting back against any copyright claim, not just because of the monetary liability but because of Section 503, which notes that one of the remedies for infringement is that the court can order that the infringing product may be "destroyed." And while fans of, say, the Seattle Seahawks, might like the idea that Colin Kaepernick's arms may need to be "destroyed," that seems like something that the Players' Association might want to take a stand on.

So now archeologists can finally put to rest all the other theories as to what really happened to the Venus de Milo arms. Too many arm tattoos.

Thanks Copyright!
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MrWilson, 14 Sep 2013 @ 11:00am

Re: Re: Re: Tattoo procedures vary
I'm running into Poe's Law here with your last paragraph. You seem to be arguing what the law says and then applying it to unconscionable scenarios that, in a court, would likely be ruled against. Cutting off your skin to sell your copy of a work on eBay isn't likely your only allowed usage of your copy. But also, mentioning that absurd scenario sounds like a parody of a copyright extremist's perspective.

If a person who commissions a tattoo requires the permission of the artist more than the implied license that comes with the artist accepting the commission, then hairstylists and makeup artists could start suing celebrities for showing up in public without paying them more.

Assigning display rights to body parts is indeed a form of slavery. You can't place a lien on a person's body. You can't repossess the tattoo or the hairstyle or the makeup application. You can't force someone to destroy a part of their body using copyright claims.

Copyright can't trump the First Amendment. But even then, you don't have to call on the First Amendment. It's just physically impractical because no reasonable person would expect that they couldn't go out in public without concealing a tattoo the copyright of which belongs to someone else. No court would rule that you have to cover your tattoos in public. If the tattoo artist willingly provides their services, a perpetual license to display the work is implied. Period.
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DogBreath, 14 Sep 2013 @ 5:02pm

Re: Re: Re: Tattoo procedures vary
The "default" grants no license under Title 17, though if the tat-ee is ever so inclined he/she could have the skin on which their tat appears surgically removed and then posted for sale on eBay. This is associated with the rule in equity known as the First Sale Doctrine.

Be careful. Depending on which country (or up until recently the State of California) you sell your tattooed skin in, you might just be hit with the old Droit_de_suite, and be required to remit a percentage of the profit from your "skin art" sale.
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Ninja (profile), 16 Sep 2013 @ 4:33am

Re: Re: Not copyright. GREED by a legislated monopoly.
No, mister, that would make you a grifter in his delusional world.
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