Athletes Don’t Own Their Tattoos
When LeBron James bounds down a basketball court, he is both a transcendent athlete and a prominent palette for dozens of tattoos. His mother’s name, Gloria, rests on a crown on his right shoulder and his forearms bear a portrait of his son LeBron Jr. and 330, an area code for his hometown, Akron, Ohio.
Although those tattoos have personal connections, they may not truly be his.
Any creative illustration “fixed in a tangible medium” is eligible for copyright, and, according to the U.S. Copyright Office, that includes the ink displayed on someone’s skin. What many people don’t realize, legal experts said, is that the copyright is inherently owned by the tattoo artist, not the person with the tattoos.
For most people, that is not a cause for concern. Lawyers generally agree that an implied license allows people to freely display their tattoos in public, including on television broadcasts or magazine covers. But when tattoos are digitally re-created on avatars in sports video games, copyright infringement can become an issue.
“Video games are an entirely new area,” said Michael A. Kahn, a copyright lawyer who represented the designer of the face tattoo on boxer Mike Tyson. “There is LeBron James, but it’s not LeBron James. It’s a cartoon version of him.”
Electronic Arts, a game developer and publisher, re-creates more than 100 tattoos in its FIFA and UFC games, including the colorful sleeve on the right arm of soccer star Lionel Messi and a heart-eating gorilla on the chest of fighter Conor McGregor. Yet only a handful of players in its Madden football games are depicted with their real-life ink.
Spokesmen for Electronic Arts did not respond to requests for comment. The company faced a copyright infringement lawsuit after the cover of the game NFL Street included an illustration of running back Ricky Williams and some of his tattoos, but the artist withdrew his claim in 2013.
Players’ unions, many of which license the players’ likenesses to video game publishers, and sports agents have advised athletes to secure licensing agreements before they get tattooed. Artists have an incentive to sign rather than pass up a client who could be a billboard for their work.
Gotti Flores said he has spent at least 40 hours tattooing NFL receiver Mike Evans, one of the few players with tattoos in Madden. He was surprised, he said, that he had to give permission for his work to be reproduced in the game.
“Really, it didn’t even matter to me,” said Flores, who signed a waiver for no compensation. “It was dope to have my tattoos on there.”