Tattoos & IPR

I just stumbled across a recent article for The Straight Dope answering the question, “Can I legally get myself tattooed with a pro sports team’s logo?” This was actually something I had wondered about recently, so it was a helpful read (though not, of course, anything like a legal opinion or case law).

The final conclusion?

Assuming you were acting purely as a deranged fan and stood no chance of personal gain, a lawsuit for trademark infringement, which presumes misappropriation of an image for commercial purposes, would be tough to sustain.

Copyright violation is an easier case to make. (Some contend a fan tattoo would constitute fair use, but I have my doubts.) The main thing is, what team or league would bother?

Of course, certain copyright holders have proven themselves very eager “to bother” about perceived infringements, even when the, ahem, culprit’s pockets weren’t deep and they’d look like bullies doing it. (Perhaps, though, the major league sports organizations in questions are much more concerned with maintaining a family-friendly kindly image than, say, record labels are.)

Adams’ point that “it’s not like a judge is going to order you to have the tattoo lasered off” marks an interesting distinction between “I uploaded this picture of yours to my site without permission and now you’re issuing me a C&D” and “I permanently etched this picture of yours to my skin and…what, now?” Okay, so it’s pretty obviously copyright infringement… and what’re you going to do about it, hmm? It pretty quickly becomes a situation of where it’s easier to ask forgiveness than permission (though arguably, if one is willing to play fast and loose with liability, pretty much any small-scale infringement on the personal level squares to that situation).There’s also the ease with which one can get away with it: unless you’re, say, a big name NBA star, your tattoo is unlikely to be noticed by whomever the copyright holder is. Not that that makes it legal at all, but then again, a law that can’t be enforced isn’t much of a law.

The tattoo artist would be in a different situation than the, uh… tattoo-ee, it seems, as they’re the ones doing the direct infringement and, for what it’s worth, making money off it. They also face the other end of the tattoo-copyright question, which is whether the tattoos they create carry copyright protections (if original, yes). [This article was an interesting little summary prepared by Volunteer Lawyers for the Arts.] It’s the same as buying a piece of artwork to hang in your home, but I wonder how many people think of the artwork on their bodies as actually belonging to someone else?

Amusingly, as I was looking around for articles on this topic (and maybe an example of someone being sued for having a copyrighted image tattooed), I discovered the satirical short story “The Background” by H. H. Munro, a.k.a. Saki about a man with a tattoo artist’s last great masterpiece tattooed on his back. He’s unable to buy it off the artist’s widow, who “donates” the work to the city of Bergamo.

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