We have previously discussed that ownership of copyright defaults to the creator of work and that someone else can’t just use or duplicate the work without the owner’s permission. So, it wouldn’t be surprising to those who read our blog regularly to hear that some creators are upset that a party has taken their works and was recreating them without permission. What is surprising is the realm in which the debate is taking place: Tattoos, athlete’s bodies, and video games.
Tattoo artists are creating works of art and placing them on athlete’s bodies. The tattoo artist creates the design and indelibly places them on a body. It might be an exclusive design for that specific person, or it may be more mass market. By placing it on the body, that does not mean that the athlete owns the copyright of the design; they just own that specific instance of the design. It’s like you own the copy of the book given to you for your birthday. This book just happens to be a bit more permanent than most.
The issue is that most people don’t become connected in the minds of the public with a book on their shelves. However, some people are so closely connected to their tattoos that just a photo of the tattoo alone will indicate whose skin it is. Or if you saw the person without that tattoo, something would seem to be missing. Think of Mike Tyson’s tribal face tattoo or Travis Barker’s boombox.
Now the athlete is a feature on a video game. If you see LeBron, you expect to see “Gloria” (his mother’s name) on his shoulder. So if you are playing your NBA video game, and LeBron has a bare shoulder, are you getting the full experience? Some say no. And some athletes say that they control their likenesses, and their tattoo is in integral part of their likeness.
Therein lies the battle. The tattoo owns the copyright; the athlete owns their likeness. So, what is an athlete to do? If you remember, copyright owners can give others some or all of their rights to the work. An athlete can have the copyright transferred to them or even licensed if not owned. That way they can give permission to the video game producers the rights to use their likenesses, including their tattoos.