In the Heat of the Moment, Don’t Lose Your Shirt

One of the iconic scenes after the Cleveland Cavaliers won the 2016 NBA Championship was a shirtless J.R. Smith jubilantly celebrating with his team.He proceeded to party shirtless for the next several days, to the point that President Obama had to implore him to finally put a shirt on.  J.R. complied, but not before partnering with Cleveland’s own Fresh Brewed Tees to create a t-shirt depicting J.R.’s bare and heavily-tattooed torso.  While the shirt is no doubt whimsical and fun, it also raises serious legal questions that J.R. may not have fully considered.

It is well-settled law that artists own certain rights in the artwork they create.  Among these rights is the ability to copy that artwork in any manner they choose and sell those copies (hence the name of this bundle of rights as “copyrights”), and also allows the artists to prevent others from infringing on those rights.  When the artwork consists of a painting or photograph, it is easy to see (no pun intended) how copyrights work:  absent express permission, the artist and the artist alone may make prints or reproductions of their artwork.  A person buying a piece of art from the artist owns only the physical piece of art and nothing more; thus the purchaser may display the artwork but may not reproduce it in any manner and sell those reproductions.  Where it starts to get murky is when the purchased art is not drawn or painted on canvas, but rather it is drawn or painted directly onto the purchaser’s body.  With tattoo art and its unconventional medium, how are (or should) the rights to that art handled?

Well, it is unclear so far.  Current copyright statutes and case law do not expressly address tattoos, but J.R. may be able to help us think it through.  It is unreasonable to expect that someone getting a tattoo will keep it covered at all times, and frankly, most people get tattoos with the goal of showing them off.  This is very similar to traditional artwork that is purchased to be displayed in someone’s home or office.  So far, so good.

We already determined that the purchaser of traditional art does not have the right to reproduce and sell that art.  It follows then, that people who get a tattoo may not reproduce and sell the art associated with the tattoo.  In the past, athletes David Beckham and Rasheed Wallace attempted to use their various tattoos as the centerpiece of advertising campaigns and were both promptly sued by the tattoo artists that created the tattoos.  Both cases settled before trial, so we do not know which side would have prevailed at trial.  J.R.’s t-shirt has perhaps taken this idea to the extreme:  not only are his tattoos the centerpiece for an advertising campaign, but an exact reproduction of the tattoos is the actual product being sold.  Absent a very understanding tattoo artist or group of tattoo artists, unless J.R. has already secured permission to use the tattoo artist’s copyrights in their work, he will likely find himself on the wrong side of a lawsuit in which he could (wait for it…) lose his shirt.

If you would like to speak to the author of this alert, please do not hesitate to contact Eric D. Kalberg, at 617 456 8073 or ekarlberg@princelobel.com or Peter J. Caruso II, at 617 456 8034 or pcarusoii@princelobel.com