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Think before you Ink – Celebrities could face being sued over their tattoos

Sunday evening will see the San Francisco 49ers take on the Jacksonville Jaguars here in England at Wembley Stadium. The 49ers quarterback Colin Kaepernick is nearly as famous for his distinctive tattoos as he is for reaching last year’s Super Bowl.

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However, Kaepernick could find himself in hot water following lawsuits that are being filed in America surrounding intellectual property rights and tattoo artists.

In America in late 2012 tattoo artist Chris Escobedo sued THQ, the creators of the computer game ‘UFC Undisputed’, for copyright infringement. In summary, in 2009 Escobedo inked a large tattoo of a lion into the ribcage of mixed martial arts fighter Carlos Condit. He then filed a claim when the fighter and his lion tattoo were digitally recreated in 2012 to appear in the UFC Undisputed computer game. Escobedo claimed that THQ did not have his prior permission to recreate the lion tattoo. Escobedo was ultimately awarded $22,500 which incidentally was the same figure that Condit was paid to feature in the game.

In the wake of the Escobedo settlement the NFL Players Association has begun advising players to obtain copyright waivers or licenses from their tattoo artists. The NFL wishes to distance itself from any potential liability, no more evident than the revenue stream it enjoys yearly from the hugely successful Madden NFL franchise. Electronic Arts, the creators of Madden will have been put on notice by the outcome of the Escobedo settlement.

Prior to the release of The Hangover II tattoo artist S. Victor Whitmill sued Warner Bros, seeking damages for copyright infringement of the Mike Tyson facial tattoo. Although the case settled relatively quickly, US district judge Catherine D. Perry indicated at a preliminary hearing that the artist had ‘a strong chance of prevailing’. Whitmill was not objecting to the use of Tyson’s tattoo in the movie itself as he had brought no lawsuit when Tyson appeared in the prequel The Hangover rather that the image was replicated and depicted on actor Ed Helm’s face in the movie and was the chosen image for all advertising in the build up to the box office release of the film.

So what would be the position in the English Courts? David Beckham found himself at the centre of copyright controversy when his tattoo artist Louis Malloy took exception to the proposed promotional campaign that was to focus on the guardian angel that Molloy had designed and tattooed on the ex-footballer’s back.

The legislation for copyright is housed in the Copyright, Designs and Patents Act 1988 (section 4). Although tattoos are not explicitly listed within the section the scope of the Act does not appear to exclude tattoos.

The majority of the cases which have been filed, centre around a commercial interest for the tattoo artist’s celebrity client. There is an implied licence that exists between the tattoo artist and the celebrity which allows the client to display the tattoo without prior permission from the tattoo artist. It is reasonably foreseeable that a celebrity client will appear across various media platforms and as a result so will the tattoo.

As it stands no cases involving tattoos and copyright have made it to the English courts. We wait in anticipation to see how the courts will decide between the interests of the tattoo artist and the client. In the meantime we would strongly suggest that tattoo artists and their respective clients sign copyright agreements which outline their respective intellectual property rights. By making the implied licence explicit there will be greater transparency of the intentions of both parties which should prevent costly litigation in the future.

If you need any advice on registering trademarks or general copyright advice please do not hesitate to contact our specialist team.

Andy Boyde – Sports Consultant

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