Tattoos and Copyright Law | Who Owns Your Tattoos?|UTLRadio Podcast

This episode of the UTLRadio Podcast aired on January 31, 2022. If you haven't done so already, make sure that you subscribe to the Understanding the Law Radio, (UTLRadio) Podcast, available wherever you listen to your podcasts.

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Order in the court. It's time for Understanding the Law Radio

Peter J. Lamont, Esq. (00:01):

Order in the court. It's time for understanding the law radio well. Hi. Thanks for joining us for another episode of Understanding the Law Radio. I'm your host, Peter Lamont, along with my co-host Brendan. How are you? Good. Ready to get inked up.

Brendan Lamont (00:19):

Is this a squid related episode?

Peter J. Lamont, Esq. (00:21):

It, it is not. It is not. I'm bringing in a tattoo artist to Oh boy. Give you some ink while you're sitting here on the podcast. While I'm sitting here. Yeah. I mean, you told me that you could withstand any amount of pain. We're gonna put that to the test.

Brendan Lamont (00:34):

I don't remember the episode in which I said this.

Peter J. Lamont, Esq. (00:36):

Yeah, I think you just said it. Please point that out to this morning. Me. Okay. And and you're gonna sit there and we're

Brendan Lamont (00:41):

Gonna see

Peter J. Lamont, Esq. (00:42):

Get a tattoo. Yep. And no one's gonna know that you're getting it.

Brendan Lamont (00:44):

Really?

Peter J. Lamont, Esq. (00:45):

Yeah. Cuz you're not going to make a sound. You're gonna just talk. Is that right? Just like normal.

Brendan Lamont (00:50):

Well, I will say I already have a tattoo. It's right across my chest. It says Understanding the law radio co-host.

Peter J. Lamont, Esq. (00:58):

I really, I really don't think that's true.

Brendan Lamont (01:00):

I think it's

Peter J. Lamont, Esq. (01:01):

True. No, yeah.

Brendan Lamont (01:02):

I got it. I got it done. So like, now you can't replace me because that would be really bad.

Peter J. Lamont, Esq. (01:08):

Well, maybe I own the copyright to that and I'd have to have you have that laser removed.

Brendan Lamont (01:13):

Oh no.

Peter J. Lamont, Esq. (01:13):

Did you think of that?

Brendan Lamont (01:14):

I did not think of that.

Peter J. Lamont, Esq. (01:16):

Oh well.

Brendan Lamont (01:17):

Guess what? This segues nicely into our episode topic today.

Peter J. Lamont, Esq. (01:20):

If you haven't guessed. We're gonna be talking about tattoos. But this is a really interesting topic because it deals with who owns your tattoo.

Brendan Lamont (01:31):

Well, I'd imagine it's me,

Peter J. Lamont, Esq. (01:33):

Right? It's your body, isn't it?

Brendan Lamont (01:35):

Yes. If I have a tattoo on myself, I would imagine that I own that tattoo.

Peter J. Lamont, Esq. (01:40):

Kind of like your hair.

Brendan Lamont (01:41):

Kind of like my hair. Yeah.

Peter J. Lamont, Esq. (01:42):

Right. Somebody else owns my hair and they took it.

Brendan Lamont (01:45):

Are you gonna tell me that <laugh>? I was gonna say, are you gonna tell me that my barber owns the copyrights of my hair?

Peter J. Lamont, Esq. (01:55):

No, because it's his specific style, it's his art.

Brendan Lamont (01:55):

That's right.

Peter J. Lamont, Esq. (01:56):

Well, he's not much of an artist, but I, let's just move on.

Brendan Lamont (02:01):

That's-

Peter J. Lamont, Esq. (02:01):

Harsh. I know it's harsh. Now we're gonna be talking about tattoos and, and ownership rights. Cuz this is something that I, I bet most of you do not even realize whether you have tattoos or not. This is something that I, I, I wonder how many of you you know, have an answer to this question. It might even be something we'll put up on social media, because I, I would like to know what people know, but now I'm gonna tell you. So maybe that poll won't be so helpful after this episode.

Peter J. Lamont, Esq. (02:33):

All right. So let's talk about tattoos for a second. They've been around forever, right? I mean, there's centuries old I, I don't remember even the origin of it, but I know that in Japan and, and the Middle East, the far East tattoos have been around forever. It was just something that you know, was, was done as a way of either showing your place in, in the society, or whether you were a warrior or whatever it was. And obviously it's evolved. And now tattoos, some of the stuff that's done is just fabulous. Like the artwork, it's hard to believe that somebody is, is is doing this with a needle and ink into somebody's skin because it looks like it's a painting.

Brendan Lamont (03:19):

Yeah, completely. It's art.

Peter J. Lamont, Esq. (03:21):

I'll never forget I went to school with this one girl that gave herself a tattoo.

Brendan Lamont (03:24):

Okay. Well, that, no, that's not necessarily-

Peter J. Lamont, Esq. (03:27):

And it, it did not look good. So I, I do think you have to have some artistic skill and maybe some training.

Brendan Lamont (03:34):

Yeah. Maybe,

Peter J. Lamont, Esq. (03:35):

I, I gotta tell you another story before we get into the topic. Oh, boy. When I was younger, I worked at a gym mm-hmm. <Affirmative>. Right? I was, I was, it was right after a college, I guess. And, and I had gotten into body building a little bit and I was working at the gym. I was a trainer. And this tattoo place opened up next to me. And the guy who owned it, his name was Wild Bill. And well, he sounds exciting. I trained Wild Bill. Right? Really? Yes. Wild. Wild Bill has since passed. Oh. Cuz he had, you know things that got in the way of his life. But I remember him showing me his tattoo studio and how it all worked and, and the whole process and everything, and the behind the scenes. And it was really kind of interesting. Really interesting. And huh. You know, then he would go in and like, if you gave yourself a bad tattoo or somebody else gave you a bad tattoo, he was skilled enough to be able to fix it. And like, so maybe somebody had a smiley face and then he turns it into like a sunflower. It was pretty, pretty interesting. Pretty interesting.

Brendan Lamont (04:42):

That is interesting.

Peter J. Lamont, Esq. (04:44):

So, alright, we're gonna talk about ownership of tattoos. Brendan thinks that the person that has the tattoo owns him,

Brendan Lamont (04:53):

I would imagine.

Peter J. Lamont, Esq. (04:53):

Right? That makes common sense.

Brendan Lamont (04:55):

Common sense. So now I'm assuming you're gonna make a fool of me right here on live.

Peter J. Lamont, Esq. (04:59):

No, no. We're gonna talk about it. I'm not gonna make a fool of you. Yeah. Just get ready, sit still, cuz here, here comes the artist. Oh boy. It's gonna be great. And it's gonna be my face on your arm. Is that right? That's what it's gonna be <laugh>. Okay.

Brendan Lamont (05:13):

You know, I was thinking about playing like a sound effect, like silent very quietly over the next 10 minutes. <Laugh>.

Peter J. Lamont, Esq. (05:20):

All right. So one of the ways that we've come to this topic is because of a number of lawsuits involving this issue. And you're gonna say what? Involving who owns my tattoos? Yes. But it doesn't come from somebody that is walking down the street and, and, and gets sued. This comes from the corporate world.

Brendan Lamont (05:43):

Okay.

Peter J. Lamont, Esq. (05:44):

Okay. In particular commercial enterprises. And even more specifically, WWE wrestling figures.

Brendan Lamont (05:56):

Okay.

Peter J. Lamont, Esq. (05:57):

W w e video games. The N B A video games and the movie The Hangover.

Brendan Lamont (06:05):

Interesting. That's a certainly a different, very interesting combination of things.

Peter J. Lamont, Esq. (06:09):

Yes. Now all things have one thing in common. All of those things make money.

Peter J. Lamont, Esq. (06:15):

That's how this lawsuit or these lawsuits came to be. But it does have a trickle down effect and does serve as an answer to this question, to people who have tattoos. Who owns your tattoo. That sounds like a song. Who owns your Tattoo? It might be that Metallica song. I can't remember the name of it. Ride The Lightning. Yeah.

Brendan Lamont (06:39):

Well, I-

Peter J. Lamont, Esq. (06:41):

Maybe's what it's from Ride The Lightning. Anyway-

Brendan Lamont (06:43):

Keep your day job.

Peter J. Lamont, Esq. (06:43):

I'll keep it. So, so let's talk about this. So you, you've you collect figures in wrestling figures.

Brendan Lamont (06:51):

I have a large quantity of wrestling figures.

Peter J. Lamont, Esq. (06:54):

So, all right. So for those of you who may or may not be familiar with wrestling and, and some of the actual wrestlers, there's, there's a, a guy in particular name's? Yes. CM Punk,

Brendan Lamont (07:06):

Right? CM Punk. Yes.

Peter J. Lamont, Esq. (07:07):

That's not his real name. What's his real name?

Brendan Lamont (07:09):

I think Phil Brooks is his real name, but his wrestling name is CM Punk.

Peter J. Lamont, Esq. (07:14):

Right. And he's extremely popular. He was on WWE for a long time, then left, then did some ufc. Then-

Brendan Lamont (07:22):

He, he did not do too good in UFC.

Peter J. Lamont, Esq. (07:24):

Yes. He realized that he should have kept his day job because UFC just did not work out for him.

Brendan Lamont (07:29):

Yes,

Peter J. Lamont, Esq. (07:29):

That's right. And he went back to another company

Brendan Lamont (07:33):

AEW.

Peter J. Lamont, Esq. (07:34):

Yep. Aew. And so, anyway, long story short, there's a lot of CM punk action figures. Yes. Wrestling figures, collectible figures that are out on the market. And the one thing that is, is noticeable on CM Punk is a variety of tattoos that he has all over his upper body. Yeah. In particular, there's one on his shoulder.

Brendan Lamont (07:58):

Yeah. Most cm punk figures are very interesting because,

Peter J. Lamont, Esq. (08:04):

Well, what's the one on his shoulder?

Brendan Lamont (08:06):

Well, hold on, I'll get to that. Okay. He has a very bare shoulder with a noticeable empty spot. And one might think, oh, I wonder why he, you know, didn't tattoo that part. He did, but in real life, it's the Pepsi logo that he got tattooed on himself.

Peter J. Lamont, Esq. (08:24):

Okay. Now I will-

Brendan Lamont (08:25):

You know, the, the red, the red and blue circle.

Peter J. Lamont, Esq. (08:27):

I've also seen figures where it's just a red circle.

Brendan Lamont (08:31):

Yes. I have seen the red circle or the, or just a blue circle or something like that.

Peter J. Lamont, Esq. (08:35):

Yeah. Okay. So that's, that's part of this discussion. So these, these figures mm-hmm. <Affirmative>, they, they are not using the actual tattoos that the people have. Yep. And they're using these, you know, smeared, smushed, mushed, different images of things that are not real tattoos on, on the, on the guy's body. Okay. So that's, that's one. Now two, take that physical figure and let's move it over to the video game. Let's talk about two video games. This is all a buildup for the answer, so you're gonna have to just stick with us. Yeah. We're gonna talk about NBA and we're gonna talk about WWE. All right. So first, NBA 2K. Who's in there? But the King, king James. Oh, LeBron James. Okay. Now, LeBron James is, is an athlete That's right. Who has a number of tattoos. Yes. And as part of the creation of NBA 2K. Mm-Hmm. <Affirmative>, you know, they make these, these athletes. Yeah. You're, you're a gamer. You're-

Brendan Lamont (09:47):

Yeah. Incredibly lifelike. They try to go as hard, sometimes they mess it up, but usually they try very hard to capture their likenesses.

Peter J. Lamont, Esq. (09:54):

And I have been in situations where I've quickly walked through a room and I've been fooled into thinking that an actual NBA game was on, or an actual, you know football game was on. Because there's a cut scene where it's like, oh my, I'm like looking in LeBron's eyes and he's looking back at me and he's saying, don't play basketball because you suck. Which is true. Well,

Brendan Lamont (10:15):

That's just mean. Why would he say that?

Peter J. Lamont, Esq. (10:17):

<Laugh> Because he's being honest. And you know what I appreciate LeBron's honesty, so I'm all for it. Anyway, so he had tattoos. Yeah. Now what happened is the tattoo artist mm-hmm. <Affirmative> decided that he was going to sue NBA 2K games because he said that, well, it was actually Take Two Interactive is the name of the company. Yeah. But he said that they don't have a license, nor does LeBron James to recreate his tattoos. Now you're thinking to yourself, what?

Brendan Lamont (11:01):

And surely he lost. Right. That's what I'm thinking to myself. What is he talking about? Yeah. That doesn't seem right.

Peter J. Lamont, Esq. (11:06):

Right. So, so it's just mind blowing that somebody could come in and say, wait a minute, even though I put this work on LeBron. Yeah. And you're trying to make an avatar, a recreation of LeBron, and you wanna make it look as lifelike as possible. You can't use his tattoo. Like, what if he-

Brendan Lamont (11:27):

That sounds crazy.

Peter J. Lamont, Esq. (11:28):

Right? What if he, I don't know. What if he wore a white glove like Michael Jackson all the time and you wanted to make him as lifelike as possible? Would he be entitled to wear his white glove on his hand? Huh? Right Now that's what you would think. Like Yeah.

Brendan Lamont (11:44):

If I would think I also, I don't know. I mean, I mean, I partially understand it cuz look, here's my thought, right? If I had a, and this is a, an extreme scenario that I probably wouldn't do if I had a tattoo of Elmo getting shot in the head with brains and splatter everywhere, and then I just happened to become a professional baseball player, I wouldn't think that my life-like Elmo getting shot in the head tattoo should be on my baseball cards and video game persona and figures. Right? I mean, that, that makes sense to not,

Peter J. Lamont, Esq. (12:15):

To not offend the kids that are playing the game.

Brendan Lamont (12:18):

Well, no. To, because <laugh> No, I mean, I mean, because I don't, I don't think that that would be, like, that's the most just grotesque example I can think of where you're so hardly defacing a brand that they'd immediately sue you, but Right. Do you get what I'm saying? Like, I could imagine a scenario where this makes sense, but that's a, like the, like the, the Pepsi logo, I get the the Sesame Street example that would make sense. Right. But I'm, I'm interested as to how, like, I guess I understand it and that the tattoo artist is an artist and so his art is copyright him. But if it's a different design, like a design he didn't make, is it his to claim?

Peter J. Lamont, Esq. (13:03):

Well, look,

Brendan Lamont (13:04):

Let's, so deep questions here. Getting into-

Peter J. Lamont, Esq. (13:06):

This is so deep, let's, let's go back to LeBron's case. So in that case, the artist sues and the court sided with LeBron. Okay. They said, look, the use of the tattoos is de minimus, meaning it's just so minor and it's not a main factor in the recreation of LeBron. So, you know, we're not gonna give you anything. There's no copyright infringement there. Yeah. It, it's, you know, and this was a New York judge. So in New York the, the rule, or not the rule, but the case law suggests that if it's de minimus, then there's no copyright infringement. So the judge actually found that it played such a small role and that James had, this is interesting, had an implied license to let, take two make a likeness of him that includes his tattoos.

Brendan Lamont (14:05):

Okay.

Peter J. Lamont, Esq. (14:06):

Now this is interesting because other courts have found the complete opposite. So they're saying that, that he had, James had an implied license. All right. Now I don't know what that's based on. But an implied license. Okay. Now

Brendan Lamont (14:24):

I, I I think I get it. I mean, if I was a tattoo artist and I was tattooing someone who was very famous and would be in the video game of that year, wouldn't that kind of count as an implied license? Cuz I'd assume that he didn't just sue. Like I'd imagine that there was discussions of other media in there. You know what I mean? Like, oh, you know, like, here, here's my thought. He probably had to assume that LeBron James would be replicated in Yes. Many forms of media, including cards and figures and toys and games.

Peter J. Lamont, Esq. (14:53):

Okay. So, right.

Brendan Lamont (14:54):

Like that's, that

Peter J. Lamont, Esq. (14:55):

Make sense? Yes. I'll give you that. That's

Brendan Lamont (14:56):

Where I imagine the implied contract.

Peter J. Lamont, Esq. (14:58):

Yes. All right. Maybe let's now swing over to Randy Orton. Okay. Okay. Randy Orton is,

Brendan Lamont (15:05):

Are you hearing voices in your head?

Peter J. Lamont, Esq. (15:06):

I am not. Randy Orton, if you don't know, that's his entrance song. Yes.

Brendan Lamont (15:11):

That's, that's what his, that is what his theme says.

Peter J. Lamont, Esq. (15:13):

Right. So he is a wrestler with World Wrestling Entertainment. Yes. Quite a popular one. Yes. And his father, for the old timers cowboy Bob Orton. Yep. And so anyway, Randy, he's-

Brendan Lamont (15:27):

The, he's very famous for doing the R K O something that many people, not even just wrestling fans know about where he does it... outta nowhere,

Peter J. Lamont, Esq. (15:36):

Outta nowhere, outta-

Brendan Lamont (15:37):

Nowhere.

Peter J. Lamont, Esq. (15:37):

Just it surprises everybody all the time. Yep.

Brendan Lamont (15:40):

Always. Especially when he builds up to it for five minutes.

Peter J. Lamont, Esq. (15:42):

Yes. Randy Orton is tattooed quite heavily. Yes. You know on his, I would say near sleeves, if not sleeves on. Yeah. On. Okay. So

Brendan Lamont (15:51):

I, I think that has given him a very distinct look.

Peter J. Lamont, Esq. (15:54):

Right. So now two K makes a video game just like they did with Yep. Lebron. Yep. And they put his tattoos on. Right. Okay. And guess what happens?

Brendan Lamont (16:06):

What happens?

Peter J. Lamont, Esq. (16:07):

The artist sues. Now you would think based on what happened with LeBron, that Sure. Brandy Orton has an implied license too. Mm-Hmm. <affirmative>, well, that's not the case really. Okay. Yeah. This is, this is the, the, the mind boggling stuff. So in this case, the court sided with the tattoo artist, and they said that there were five distinctive tattoos on Orton's avatar. So not all of the tattoos, but five of them were distinctive and that it violated the artists copyright. Interesting. Now, take two, argued like they did with LeBron's case that the avatar constituted fair use of the tattoos or implied license mm-hmm. <Affirmative>, and this case, by the way, took four years. Four years. But a jury said, no, there's no fair use here. They gave the tattoo artist an award of are you ready for this? Yeah. How much money he made. Yeah. After four years. Yeah. $3,750.

Brendan Lamont (17:20):

That is not much money.

Peter J. Lamont, Esq. (17:22):

No. So at the end of the day, did it really make a difference to take two? No, of course not From a financial standpoint, it didn't make a difference. But it's now, you know, really hammered home this idea of what is permitted, right. What's not, and who owns the copyright. Mm-Hmm. <affirmative>, I'm gonna give you one more example

Brendan Lamont (17:41):

From, well, well, can I ask you something really quick? Yeah. I don't know if you know the answer to this. I don't know the answer to this. Were LeBron James. Tattoo was that tattoo that he had, was it an original design or was it a, a pre, like, like a copywriter design trademarked.

Peter J. Lamont, Esq. (17:58):

Well, I, I don't know which tattoo. I would imagine it was the one that was created by the artist. So for example, just because I know you've never received a tattoo That's right. Until today what happens is the artist will actually draw out the image mm-hmm. <Affirmative>. So even if you were to say, Hey, draw me Mickey Mouse, make me Mickey Mouse on my arm. Yeah. He'd still sketch it out. And then they put like the stencil on your arm so that they can trace over it. So in theory, everything they do is an original piece of art. Because even if you said, arguably, let's just play devil's advocate. If you say, draw me Mickey Mouse, it's his own artistic interpretation of Mickey Mouse, even if it looks identical to the one that's in Disney World mm-hmm. <Affirmative>. So arguably everything is, is original. Would you agree with that? Yeah. Okay. So I'm not sure with LeBron what specific tattoos that they were taking issue with. Yeah. But I think it was, was all original work. Now this highlights, and this is the last case. Then we'll get down to breaking down the answer. And, and you know what you need to know, but The Hangover. Okay. You remember that movie? I

Brendan Lamont (19:17):

Do remember that movie. Yes.

Peter J. Lamont, Esq. (19:18):

It was a great movie. Great movie. And one of my favorite cameo appearances was by Mike Tyson. Yes. Right. Mike Tyson was funny. Remember the tiger? That was,

Brendan Lamont (19:29):

That was very hilarious.

Peter J. Lamont, Esq. (19:31):

Yes. That was. Yes.

Brendan Lamont (19:32):

He showed up and the, and the, yeah. Yeah. And he was in the second one. Yes.

Peter J. Lamont, Esq. (19:36):

Well, in the first one, Mike Tyson has, you know, that face tattoo he got, yes. I'm not sure why he he ever did that, but he did. He did. And it, it's a very unique design, but it's like the tribal inspired, you know, that that kind of tribal art that you've seen, like you know, you know what I'm talking about? Mm-Hmm. <affirmative>. Okay. So it was,

Brendan Lamont (20:00):

It's like, yeah, no, I know what you're saying.

Peter J. Lamont, Esq. (20:01):

All right. So it's like a tribal design and that, that was on his face. Right. So in the movie, as one of the gags what's the guy that played Andy from the office? Oh,

Brendan Lamont (20:14):

Ed, it's,

Peter J. Lamont, Esq. (20:15):

It's Ed Ed Helms. Ed Helms.

Brendan Lamont (20:16):

Ed Helms. Yes. We get that one out together.

Peter J. Lamont, Esq. (20:18):

Yes. Very good. Tag team.

Brendan Lamont (20:20):

Yes.

Peter J. Lamont, Esq. (20:21):

Ed Helms was one of the characters in the film. And, and he ends op, of course, you, you know, the premise of the hangover, if you haven't seen it, you should go see it. But he wakes up after a, a night of debauchery and mm-hmm. <Affirmative> roofies. And he wakes up with Mike Tyson's tattoo on his face now, not Mike Tyson's actual tattoo. Cause it was still attached to Mike Tyson's face, but he got the same exact design, and the artist ended up suing the movie production, tried to block the movie from coming out, saying that it was his design on the face. Yeah. And again, similar to the Randy Orton lawsuit, they, they ruled in favor of the artist, that it was copyright protected, but they didn't actually have that play out in court. It looked like that's where it was gonna go. And then they settled, and I'm sure that the production company, because they knew what a, you know, a, a popular film, it was gonna be, they thought it was better to settle with the artist than to actually get an award. But it all all, all of the lead up to the settlement mm-hmm. <Affirmative> seemed to suggest that the artist was likely going to win. Yeah. All right. So now let's, let's break this down. So our copyrights are tattoos covered by copyright. That's the question. So there's a, a sounds

Brendan Lamont (21:57):

To be like nobody knows

Peter J. Lamont, Esq. (21:58):

<Laugh>. There's a test, there's a test that courts are using, but every court's gonna take this differently. Okay. So basically, first they determine if your tattoos covered by copyright, by, by meeting the following criteria. Okay. First of all, it's gotta be original to the artist mm-hmm. <Affirmative>. And it must be shown to possess at least a minimal amount of creativity. Okay.

Brendan Lamont (22:20):

So, so original to the artist, is that, does that mean that, like what I said, desire. Right. So it can't be a copyright.

Peter J. Lamont, Esq. (22:26):

Right. Okay. If you assisted the artist in the actual designer layout of the tattoo, then the tattoo is considered a collaboration. Got it. In which case both people would own the rights. Okay. So what this means is if you go into a tattoo parlor or studio Yeah. And the artist, you say to him, listen, I would like a winged unicorn flying th over the sun with Elmo on. Mm-Hmm. <affirmative> all intact. Not the sadistic, disgusting elmo that you have created in your warped and twisted mind.

Brendan Lamont (23:06):

I would not want that Elmo, I'm a fan of regular Elmo. I'm just saying.

Peter J. Lamont, Esq. (23:11):

So you got thrown out there in all his red fiery glory. Okay. Sitting the top, a winged pegasus that flies across the sun <laugh>. And you say, this is what I want, and the artist goes back and draws it. That's his. So now when he tattoos that design on you, he technically owns the copyright. Yeah. If all of a sudden you were to become famous and your tattoo is visible everywhere.

Brendan Lamont (23:38):

Okay. Yeah. I

Peter J. Lamont, Esq. (23:39):

Understand. You could potentially have a copyright claim. Got it. Now, I, I do wanna make one point that we're gonna talk, talk about later. We've talked about figures in films. What about when somebody takes a picture of you? We'll get to that in a minute. All right. So if it's an original design artist owns it. Okay. If it is a collaboration, so in other words, you say, I'd like a skeleton, but I'd like it like this. And then he draws it and you're like, no, can you change this? And how this,

Brendan Lamont (24:05):

What clarify, because like, again, okay, I want Elmo on a Pegasus. He brings it back to the design. Okay. Shift this one cloud slightly to the right. Boom. Collaboration.

Peter J. Lamont, Esq. (24:12):

I think it depends on the extent of your changes. I think that's how a court would look at it. Cuz they would look at it on a case by case basis and say, what did you do? Did you simply adjust the placement of one cloud or was it, was it more? Right.

Brendan Lamont (24:26):

Okay.

Peter J. Lamont, Esq. (24:27):

So okay. If you go in there and you say, this is like, here, here's a drawing that I did. I'm not an artist, but this is kind of what I'm looking for. And then he does it, and then you're like, can you tweak this and whatnot? I think that you, you'd be dealing with more of a collaboration. Right. Okay. And in that case then you both have copyright protection for it mm-hmm. <Affirmative>. Okay. Now what about getting that Pepsi logo or another copyrighted or copyright protected image? Yeah. So no one's gonna stop you from doing that. If you went into a, a, a, a studio and said, I want the Coca-Cola logo. Right. I want, you know, whatever it is, I want Exxon tattooed on my body, <laugh>, they would probably do it. Okay. Okay. The issue becomes, is the creator of the Exxon logo Yeah. Or the Exxon Corporation ever going to sue you as an individual and say, copyright protect? No, they're not, they're not gonna see you. They're not gonna know you. They're not gonna care.

Brendan Lamont (25:34):

Now what if I had a tattoo that said Exxon with the whole logo sucks.

Peter J. Lamont, Esq. (25:38):

They're still not gonna care. Huh? They're not gonna see you. However, what if you became famous and they made a video game about you, or an action figure about you? Yeah. Then in that case, the design studio doing the game or the figure, they would likely not want to include that tattoo. Not because they like Exxon and you don't, but because of the fact that it would probably constitute copyright infringement. Mm-Hmm. <affirmative>. So that's interesting because if an artist were to take a direct cartoon character or logo or anything like that, right? It's possible that the original copyright holder can say that you are diminishing the value of their original work and, and that sort of thing. But again, the average person who is not going to be in the limelight, it's not gonna make a difference because nobody is going to come and, and, and say, Hey, do you have Mickey Mouse tattooed on your shoulder? And, and now I'm gonna sue you. Right? Yeah. So it really only translates into more of these commercial situations where Right. You're making money. So that's what it comes down to. So when, when you own, when people, you know, it's my tattoo, you own it, you own it in the sense that it is your permanent physical possession, you own possession of that design. Okay? You, you have the right that's with you. It's part of you, but you don't have the actual rights to the design itself. Does that make sense? Yeah. I

Brendan Lamont (27:25):

I get it. I I th it's complicated.

Peter J. Lamont, Esq. (27:27):

It is

Brendan Lamont (27:27):

Complicated. You know, I'm understanding of it.

Peter J. Lamont, Esq. (27:30):

And so let's say you are, that's,

Brendan Lamont (27:32):

That's very nuts. I don't know. That's, that's very interesting. I would think that once a tattoo is on your body, it doesn't matter. You know what I mean? Right. Like, that's the logical thing. But

Peter J. Lamont, Esq. (27:40):

So, so when, when looked at the idea of you having a, a tattoo that now is going to translate into some commercial use, whether it's a video game or whatever, can you as the person with the tattoo grant permission mm-hmm. <Affirmative> to somebody else for that tattoo to be used, that image to be used commercially? And the answer is no. Huh? Only the person, right. Who holds the copyright could say Yes, it's fine to reproduce or commercial use.

Brendan Lamont (28:20):

Hmm.

Peter J. Lamont, Esq. (28:21):

So it's, it's really nuts.

Brendan Lamont (28:23):

It is really

Peter J. Lamont, Esq. (28:24):

Nuts. It's not what you think.

Brendan Lamont (28:26):

No,

Peter J. Lamont, Esq. (28:27):

But that's the reality of it. So,

Brendan Lamont (28:28):

Well, I just say be, be smart and don't get a tattoo at this point.

Peter J. Lamont, Esq. (28:32):

Well, no, you wanna know how you deal with it. Yeah. Here's the real answer, right? So let's say you are a celebrity, right? And you're gonna go get a tattoo, okay? What you want to do is you want to get a, a release, you want to get a release from the artist. If you know that there is the chance that you might be in a position where you are going to make money off of your image and likeness

Brendan Lamont (28:56):

Mm-Hmm. <Affirmative>,

Peter J. Lamont, Esq. (28:58):

Then you say to the tattoo artist, look, you know, I want you to tattoo me, but I need a, an artist's release. It's kind of like a photo release when you go to a photographer cuz the photographer owns that image that's part of, of, of that photographer's copyright. But if you get a photo release, then they release you from the copyright and you can do whatever you want with it. So that's what people can do to try to avoid getting in situations where their tattoo is going to become an issue with copyright. Mm-Hmm. <affirmative>. Now, again, for 99% of the people out there who go and, and get a tattoo, is this gonna matter at all? No. But for celebrities and for people that might find themselves in a, a, a position where they're being depicted, it is an issue. Now, last thing I wanna say, remember I said earlier that I wanted to talk about the difference between that and, and a picture?

Peter J. Lamont, Esq. (29:59):

Yes. So if I'm going to take a picture and sell it to People Magazine Yeah. And, and here's, you know, LeBron James with his tattoos, or Randy Orton or, or anybody for that matter mm-hmm. <Affirmative> that picture, that that picture of them, the person, the photographer's gonna get paid, the publication is gonna get paid for selling that magazine. So what's the difference? Now, I'll tell you the difference, but when you start to like, think about it mm-hmm. <Affirmative>, it's like what's the difference between seeing him in a video game Yeah. And seeing a picture of him in People Magazine. Well, the argument is that that is not a reproduction, that that is a physical depiction of him, and that you can take a picture of somebody got it. The way they look with whatever is displayed on them. Mm-Hmm. <affirmative> and there's no copyright protection for the tattoo at that moment. But when you go to reproduce the art in the form of an avatar or a movie, right. That's different. But if you, you know, if you think deeply enough about it, you, you kind of have a hard time saying, well, what's the difference? What's the difference if you take a picture of me

Brendan Lamont (31:20):

Right.

Peter J. Lamont, Esq. (31:21):

And sell it versus making an avatar of me. But there is a difference. So yeah. This is one of those things that I don't think a lot of people know because it just sounds absolutely ridiculous. Do you agree that it sounds ridiculous?

Brendan Lamont (31:37):

It does. It does. I mean, on the one I I, yeah. I mean, there's so much to this. I never would've thought that it was this deep. I went into this episode thinking, oh, okay, I wonder do you own it? And it's so complicated.

Peter J. Lamont, Esq. (31:51):

It is. Yeah. It, it really

Brendan Lamont (31:54):

Is. I, I think though that, I mean, I don't know. I I guess it makes sense, you know, if, if if it's considered art and the tattoo artist makes it, I don't understand why, you know, he wouldn't like it. It's his image. So, so Yeah. I I get it.

Peter J. Lamont, Esq. (32:10):

Yeah. Well, I mean, I, I, I have to tell you, I never really, until some of those cases came out, I never really thought of it like that. I just always thought of it like, Hey, you know what, you've got a tattoo. It, it's, it's you. And if I were going to make a, a reproduction a figure or whatnot mm-hmm. <Affirmative>, I probably would've done the same thing. You know what I mean? Yeah. Like, I would've, I would've said, Hey, I'm gonna make the, the Pepsi logo, or I'm gonna make, well see, look, here's the, the issue with the Pepsi logo. Maybe I would say to myself, I know that I don't own that Pepsi logo. I know that that's something else. Yeah. I wouldn't put that on, but everything else I would've included in a figure. Right. So, yeah. Fascinating that, you know, you don't actually own the design of your tattoo mm-hmm. <Affirmative>. So the next time you go to a a tattoo studio, keep that in mind. Not that it's gonna change anything or make a difference unless you decide that you're gonna somehow become a celebrity. But I, I would often wonder, or I often wonder, what does that mean in terms of social media influencers? Yeah.

Peter J. Lamont, Esq. (33:14):

Because while you're not, quote unquote a celebrity, if you're a social media influencer, getting paid with quite a bit of followers and quite a bit of, of traction, you know, at some point is an artist of your tattoo going to file some type of copyright claim? Mm-Hmm. <affirmative>. So interesting stuff, interesting topics. Certainly not what I would think you would expect the answer to be, but yeah. Answer is, you own the right to display that. Mm-Hmm. <affirmative>, but you don't actually own the right to the design. Interesting. Interesting. All right. Well you did a great job sitting here getting your tattoo an That's right. Absolute silence. It

Brendan Lamont (33:55):

Looks just like you're perfect face's. However, that's now I'm worried that you're gonna sue me if I ever get into a video

Peter J. Lamont, Esq. (34:01):

Game. And you know what? I just might, that's just the kind of person I am. Yeah. I don't know. All right. Well, that's gonna do it for this episode.

Thanks for joining us. We will see you next time.

Thanks for listening to Understanding the Law Radio. If you haven't done so already, make sure that you subscribe to the podcast. We're available anywhere that you listen to your podcast, including Amazon, apple Music, Spotify, iHeartRadio, and many more. Also, don't forget to check us out online on Facebook, Twitter, and Instagram. Thanks again. We'll see you next time.

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As with any legal issue, it is important that you obtain competent legal counsel before making any decisions about how to respond to a subpoena or whether to challenge one - even if you believe that compliance is not required. Because each situation is different, it may be impossible for this article to address all issues raised by every situation encountered in responding to a subpoena. The information below can give you guidance regarding some common issues related to subpoenas, but you should consult with an attorney before taking any actions (or refraining from acts) based on these suggestions. Separately, this post will focus on New Jersey law. If you receive a subpoena in a state other than New Jersey you should immediately seek the advice of an attorney in your state as certain rules differ in other states.