Who Owns the Copyright for a Tattoo?

As if it were not enough that college athletes are seeking compensation from video game makers for using their names and likeness, now there is a group of tattoo artists suing video game makers who re-create an athlete's image--including their tattoos.  As with several other emerging copyright issues there are two schools of thought.  One is that, once the athlete pays for the tattoo, it belongs to them.  The other is that the tattoo still belongs with the artist, and therefore, any recreation of that tattoo as part of a game is a violation of the artist's copyright rights.

The ensuing litigation has caused the NFL Players Association--which licenses images of the players to EA Sports--began encouraging athletes to obtain licenses to their body art in order to avoid claims by the tattoo artists against EA Sports. 

Generally, a work remains the property of the author who created it (in this case, the tattoo artists).  However, there is an exception for what the Copyright Act deems "works made for hire."  The works made for hire doctrine allows an employer to be the author of a work created by its employee within the course and scope of his/her employment.  It also applies in the context of a commissioned work (i.e. a work specially ordered or commissioned for use in certain circumstances).  This part of the Copyright Act does not explicitly cover tattoos.  But, if the courts find that the tattoos are, indeed, works made for hire, then there must be a written document indicating that it is a work made for hire. Essentially, this writing transfers the copyright rights to the person receiving the tattoo.  Otherwise, the artist maintains the rights. 

Now, I am pretty sure that before this influx of lawsuits, there were no real written agreements between a tattoo artists and their customers.  I would venture a guess that there are more tattoo artists being asked to sign agreements assigning or licensing their copyright rights to their customers. 

Leahy Kills Proposed Patent Reform Legislation Targeting Patent Trolls

Patent trolls rejoice! Senate Judiciary Committee Chairman Patrick Leahy killed the Innovation Act which sought to curb patent trolls.  Patent trolls are firms that obtain (horde) patents and use them primarily to threaten lawsuits.  The Innovation Act sought to impose a loser pays regime in patent lawsuits, protect end-users from being threatened with legal action for using commonly available products, and would have required more detailed descriptions of the alleged damage suffered by the trolls in their initial pleadings.

Not surprisingly, the Innovation Act was popular over a broad spectrum of companies, by persons on both sides of the aisle, and the President. Unfortunately, the trial lawyers and drug manufacturers were not such big fans.  Hmmm.  Leahy claimed that the Innovation Act would have "severe unintended consequences on legitimate patent holders."  So, we should let the illegitimate patent holders keep making profits by way of lawsuit extortion?

Another Group Joins the Call to Change the Copyright Act

If you follow this blog at all, you will know that I am not a big fan of the Copyright Act in its current form.  Well, I can happily say that I am not alone.  A group of academic authors known as the Authors Alliance are seeking changes to the Copyright Act to reflect the reality of publishing in the digital age.  In particular, this group wants the Copyright Act changed to allow librarians, archives, and heritage groups to reproduce and store books digitally.  The Authors Alliance says that in denying these groups the ability to digitize books could mean losing "long-term cultural and intellectual history."

I could not agree more.  Unfortunately, the Authors Guild vehemently disagrees.  The Authors Guild feels that making works easily available and sharable digitally will undermine the literary industry--sort of like music sharing has "undermined" the music industry. 

It appears as if the Authors Guild is doing what the music industry did when faced with the digitization of their works, trying to maintain the status quo.  I said it at the time when I was a fairly fresh-faced intellectual property attorney and the Napster case was wending its way through the court system:  the music industry then should have embraced Napster and worked with it to achieve its goals (maintaining profitability for the artists and allowing the copyright holders the ability to control their songs).  Instead, they fought tooth and nail and are now losing terribly.  The Authors Guild should learn from the music industry's mistake. 

The artists should ultimately have a say in how and what type of protections they want to have for their works. As I've written before, some authors are okay with looser restrictions, others want to maintain a vice grip on their intellectual property.  There has to be a way to modernize the Copyright Act to achieve some middle ground given that digitization is going to happen one way or another.