On copyright and cultural issues surrounding tattoos (again)

Merpel's tattoo consultant advised
her to get a discreet tattoo
with Disney's Cheshire Cat 

For quite a long time Merpel has considered the idea of getting a tattoo, although possibly bearing neither a feline nor copyright infringement-related image. 

However, after serious reflection and two new tattoo-related stories from the US and New Zealand respectively, she has decided against doing so, being concerned with all the various IP and cultural issues that appear to surround the world of tattoos.

When in Delhi to attend a friend's wedding,
a Kat is usually required to partake
in a copyright-related henna ceremony

Is there copyright in a tattoo? If so, who owns it?

It was not long time ago that Miri reported on a new tale of celebrities (Kate Moss), tattoos (a little anchor on the British model's wrist) and IP. 

IPKat readers will also promptly remember the lawsuit filed by Mike Tyson's tattoo artist against the producers of The Hangover - Part II back in 2011. This  case was eventually settled, but the issue of copyright in tattoos is still far from settled (see 1709 Blog posts here and here).

Apparently, there is no relevant precedent [at least under US law, but how about other jurisdictions? Do any readers know?] which has established whether (1) tattoos are copyright-protectable subject-matter in the first place [but why should not they be? They are potentially original works, moreover fixed in a tangible form] and, if so, (2) whether copyright is owned by the person who receives the tattoo (under the work for hire doctrine) or the artist who realises it. 

Although this Kat does not have any tattoos (but see some evidence to the contrary on the left hand side), she reckons that copyright may (or has even already) become an issue of serious concern, especially in the case of celebrities who bear very distinctive (yep, possibly even in a trademark sense) tattoos.

San Francisco 49 ers quarterback
Colin Kaepernick

To relax just a few moments  on a cloudy August evening, this Kat took a look at an old favourite of hers, ie Forbes magazine. 

She discovered an article that discusses the case of San Francisco 49ers quarterback, self-evident tattoo-lover and businessman (here and here) Colin Kaepernick. 

Also following the release of a new advertisement for Yahoo! Fantasy Sports which features the sportsman while sitting in a tattoo studio, debate has intensified as to what extent a celebrity's tattoos are associated with his/her likeness and, in parallel to this, who owns copyright in those tattoos. 

With particular regard to the latter, there are rumours that the NFL Players Association has become increasingly concerned and has started advising agents to tell their players that, when they get tattoos, they should get a release from the tattoo artist and, if they can track down their former artists, they should get a release as well.

Apparently the NFL Players Association is also considering asking its players to indemnify and hold it harmless in the event that the players do not succeed in obtaining a release from the tattoo artist. The same might be required by third parties that wish to use players' likeness.

Nike Pro Tattoo
Tech gear

Nike's gaffe with Samoan tattoos

The other tattoo-related story comes from New Zealand via Katfriend and barrister Kevin Glover and concerns new Nike women Pro Tattoo Tech gear inspired by traditional tatau (tattoos of the Pacific which are considered a rite of passage for men and women). 

Not only have some people complained about the use of the designs (which are viewed as sacred by Polynesian people), but Pro Tattoo Tech tights create the appearance that the wearer has a traditional Samoan tattoo, the pe'a, which is reserved for men.

Drawing from the Lego precedent, Kevin explains that, in some ways the problem for Nike is that it is not alleged to have infringed any IP rights. If it had, then a case could go to court in the usual way. The Court would either find that Nike’s use of the designs as inspiration was permitted or else that it went too far amounted to (for example) copyright infringement. Nike would have a chance of vindication. That path is not available, and so Nike faces the prospect of negative publicity unless or until the matter is resolved in some other manner. The most likely resolution would seem to involve Nike backing down, concludes Kevin [has this happened already? If you search Pro Tattoo Tech tights on the UK Nike website, you will be informed that "The product you are looking for is no longer available"]