Getting a tattoo? If you’re in the media you need to get the copyright too!
Things just got more complicated for on-camera folks who have tattoos, body art or other adornments.
In the movie Hangover II, Ed Helms' character wakes up with a replica of Mike Tyson's facial, tribal-art inspired tattoo, created by a tattoo artist from Missouri, and comedy ensues.. but not for the film's producers, who failed to get the proper clearances from the owner of the copyrighted design.
The tattoo artist in question has registered the copyright, and filed a lawsuit for damages and an injunction. He even initially asked the Court to issue a preliminary injunction which would have prevented the release of the film. Although Warner Bros. avoided the preliminary injunction, and was thus allowed to release the movie (garnering tremendous first weekend box-office revenues), in denying the injunction, the Judge make an important statement. Specifically, the Court acknowledged that the tattoo artist has established a “likelihood of success on the merits” of the copyright infringement case. Essentially holding that the Tattoo was copyrightable, and that the film probably does infringe that copyright.
What if Tyson had obtained the copyright in the tattoo, rather than allowing the artist to retain it? In that case, he could have granted WB the right to reproduce it in the film. (Tyson appeared in the first Hangover picture, and apparently has a cameo in the sequel, as well.)
While such grants aren't commonplace in current talent agreements for motion pictures, it's a safe bet that following this lawsuit, they will be included as a matter of course.
So, if you're an on-camera personality, whether an actor, reality show contestant, talk-show host, newscaster, or sports-figure, you can expect that your next contract will include some language stating that you have the complete right and authority to enter into the contract and to grant the rights included in the agreement, which will likely include the right to display, reproduce and make derivatives of any body art, adornments or stylings you may have. If you don't own such rights, you'd need to alert the producers, and warn them to obtain clearances from those who do. Since producers aren't likely to want to take on such additional leg-work, not owning the rights in your body art and adornments could actually cost you the job
Now, it's anything but a given that every tattoo is sufficiently original to entitle it to copyright protection…. and even less certain that the artist will care, or jump through the regulatory hoops of registration, but some will. So, discretion being the better part of valor, it's incumbent on on-camera folks with tattoos, piercings, and what-have-you, to make sure they obtain either (a), the copyright in any such artworks, or (b) a non-exclusive license to use, display, make derivative works based on the artworks, and to license others to do the same.
Yes… things just got more complicated. The good news: The paperwork is simple. Most lawyers who pay attention to this stuff can crank out the needed copyright assignment documents in about 15 minutes.
Getting a tattoo? Got some existing artwork that could be an issue? Give me a call!