Copyright in tattoos in videogames: will a bankruptcy appellate panel tell us all (or at least something)?

The real Carlos Condit in action ...

It was not long time ago that the IPKat published a series of posts (here, here and here) on copyright issues surrounding tattoos. These flourished following observation of people's tattoos on the beach publication of a Forbes article that reported rumours that the NFL Players Association (this is the organisation that represents professional American football players in the National Football League) has become increasingly concerned about potential copyright claims concerning its members' tattoos, and has thus 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.

It appears that concerns pertaining to copyright in tattoos do not interest solely the world of games, but also that of videogames. 

A few months ago The Hollywood Reporter told the story of Arizona-based tattoo artist Chris Escobedo, who sued videogame publisher THQ over the UFC Undisputed games. As summarised by The Legal Satyricon, the plaintiff had tattooed a lion on US mixed martial fighter Carlos Condit’s ribcage, and claimed that he owned a valid copyright to this image. Therefore, unauthorised use by THQ of his work in UFC Undisputed 3 was tantamount to copyright infringement.

... his virtual version ...

THQ expired shortly after the proceedings were brought, so Escobedo's claims "migrated" to a bankruptcy court. Among other things, as reported The Hollywood Reporter and PCGames, this court was asked to value the worth of a tattoo copyright infringement. 

Escobedo claimed that this amounted to $4.16m, ie 2% cut of all post-bankruptcy sales of UFC Undisputed 3. The judge disagreed and valued the claim at a slightly lower value: $22,500, this being the same amount Condit himself had been paid for the use of his image in the game. 

Clearly Escobedo was not satisfied with this outcome. Thus a few days ago he appealed the order before a bankruptcy appeal panel. Escobedo's attorney asked to determine what royalty a hypothetical negotiation between his client and THQ would have produced and made the argument that Escobedo would have negotiated a per game royalty rather than a one-time fee. 

... and his Kat version
(you may have fun trying to guess which he is)

The debtors replied that Escobedo's claim must be reduced to reflect, among other things, 

1. the likelihood that a tattoo on another person's body is not copyrightable, 
2. the likelihood that Condit had an implied license to license to THQ his own digital image (including an image of his lion tattoo), without restriction by a tattoo artist [Escobedo and Condit never signed a written agreement]; and 
3. the likelihood that, if the lion tattoo is copyrightable, Condit would have to at least be considered a joint author of the tattoo with an equal right to license it to others.

It is still unclear whether tattoos are protectable copyright subject-matter under US law at all. If they were, would there be any limitations to their copyright protection, eg because of the particular medium on which these original works are fixed?

Who sports it best?

IPKat readers who are also fans of The Hangover film series will remember the lawsuit brought by Mike Tyson's tattoo artist against Warner Bros for the Maori-inspired face tattoo on actor Ed Helms. Although the case was eventually settled out of court, Judge Catherine D Perry of the Federal District Court in St Louis said that the tattoo artist had a “strong likelihood of prevailing on the merits for copyright infringement” and that most of the arguments put forward by Warner Bros were “just silly".

Who knows: perhaps the decision of a bankruptcy appellate panel will shed some light on whether copyright may subsist in tattoos. It is apparent that providing an answer to this question will have relevant implications, both legally and economically, especially in societies (like the US) where 4 out of 10 so called millennials (teens and twenty-something) have at least one tattoo. There is no need to point out that current and future sportsmen and sportswomen, cool singers and actors, models and socialites who appeal to advertising agencies, commercial sponsors and similar undertakings are likely to be among them.