Dear Cecil: What are the legal implications of getting yourself tattooed with a copyrighted or trademarked image, such as a sports team logo? Would you have to pay royalties? Would you get sued? The NFL is opposed to you even talking about the game the next day; logo tattoos must drive those guys crazy. Or is it viewed as free publicity? TEH BEN, VIA TEH INTARNET
Now, Ben. The NFL doesn’t mind your talking about the game afterward. What they get tetchy about is careless discussion beforehand — e.g., calling that midwinter event they use to fill the time between commercials the S_p_r B_wl rather than “the big game.” However, I think there’s a way you can get away with an unauthorized tattoo. Listen up.
First we asked the big leagues (MLB, NBA, NFL, and NHL) for their position on fan tattoos. Three of the four stonewalled us, no shock. Surprisingly, an MLB lawyer agreed to talk, but unsurprisingly clammed up as soon as he learned we were ferrets from the press. Later we received the following terse statement: “Any use of MLB or Club trademarks requires assessment of the nature and scope of the proposed use. We handle requests for use on a case by case basis and take action when it is discovered that these marks are used improperly.”
Well, that’s helpful, you think. Ah, but it is. MLB has given us the nub of the answer: it depends. On what, you ask? We’ll take it step by step.
Fact #1: Yes, it’s possible to get sued over the copyright on a tattoo. Ask Rasheed Wallace, the now-retired NBA All-Star. In 1998 Wallace had an Egyptian-themed tattoo — showing a pharaoh, his queen, and their three children — inked onto his right upper arm by tattoo artist Matthew Reed. In 2004 Reed saw Wallace in a Nike TV commercial in which the tattoo was re-created via computer simulation while the basketball player explained its significance. Affronted that he’d received neither credit nor money, Reed sued Wallace, Nike, and the ad agency for publicly displaying what he claimed was his copyrighted work (the tattoo) without his consent. The parties evidently settled out of court. OK, not quite the fact situation you’re describing, Ben, but you see the operative dynamic: art + ego + money = trouble.
Fact #2: Pro sports big shots have been known to get seriously ticked off over tattoos. Granted, the people they’re getting ticked off at are mostly athletes wearing tattoo advertisements, not ordinary mopes. Example: in 2001 boxer Bernard “the Executioner” Hopkins wore a temporary tattoo on his back advertising GoldenPalace.com, an online casino, during a televised bout. (Hopkins’s paycheck for billboard duty: about $100,000.) The Nevada Athletic Commission banned further tattoo ads but lost a court challenge. Then ESPN declared it would televise no fighters sporting ad tats, no doubt thinking: nobody’s making money selling advertising on our network except us. Returning to the mathematical statement of principles above, we see that the art and ego terms drop out (the controversial messages consisted of unadorned text), and the equation reduces to: money = trouble. True dat.
Fact #3: Momentous legal issues are at stake here. A 2005 article in the Fordham Intellectual Property, Media & Entertainment Law Journal considered the implications for American jurisprudence if the NBA formally banned commercial tattoos on players. On the one hand, the players have rights to freedom of expression, personal liberty, and privacy. On the other hand, you’ve got — sorry if this gets repetitive — money. For example, in 2001 Rasheed Wallace, a trailblazer in so many ways, reportedly weighed a $15,000 offer from a candy company to wear a temporary tattoo, which surely would have upset Nestle, the NBA’s official candy sponsor. The league declared they’d block the scheme; Wallace’s agent maintained that the NBA players’ agreement didn’t forbid such things. His client, in the end, said no.
Perhaps you’re thinking: I don’t see what this has to do with whether I can have a Red Wings logo tattooed across my face. You haven’t been paying attention then. The common element in all the above is that something was at stake financially. 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? They’d look like bullies, your pockets probably aren’t that deep, and it’s not like a judge is going to order you to have the tattoo lasered off. Then again, we’re talking about professional sports, where conventional logic is out the window. (My dream is to visit the planet where NFL playoff seeding makes sense.) The best advice I can offer is: do what thou wilt, tatwise; just be careful nobody but the team owners and the networks makes a buck.
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