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.
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