While anyone seeking to use a model or high profile individual as part of their business would reasonably expect that any agreement would include the rights over their skin, this may not be as clear cut as one would first think. One only has to look on a football pitch to see work displayed intricate enough to be at home in an art gallery and much like an artist keen to ensure their work is not exploited, tattooists have followed suit with a series of disputes over the use of their designs developing – albeit, currently limited to outside the UK.
In 2011, tattooist, S Victor Whitmill, sued Warner Bros for copyright infringement relating to Mike Tyson’s Maori inspired facial tattoo which was reproduced on to the face of one of the lead actors in The Hangover Part II. While the case, heard in California, eventually settled, the judge did indicate at a preliminary hearing that the artist had a ‘strong chance of prevailing’. Similarly, Arizona based tattoo artist Chris Escobedo sued a video game publisher over the unauthorised reproduction of a lion tattooed on to the ribcage of US mixed martial artist fighter Carlos Condit in the video game UFC Undisputed 3. Mr Escobedo was eventually awarded $22,500 - in fact the same amount the fighter was paid to appear in the video game – which gives further encouragement to tattooists seeking to assert rights over their ‘work’.
The English courts have, however, yet to assess this topic. This notwithstanding, at the most simplistic level the copyright in any new design by default under English law would rest with the tattoo artist. Mindful of this, individuals may need to start thinking about ensuring that all rights are assigned over before you get ‘inked’ – a recommendation which the NFL Players Association is reported to have advised agents to pass on to the players. Of course, while the fact remains the notion of obtaining rights over your own body may seem a little preposterous, perhaps it is a small price to pay to save your own skin.