United States: Three Point Shot - November 2013

Whose Tat? Body Art, Copyright and Sports

Sports and Hollywood have long been inextricably linked – many athletes want to be and even become actors, countless actors have lived out their athletic fantasies on the silver screen, and it is no secret that athletes and actresses are often quite publicly attracted to each other. Recently, another area of overlap between sports and movies has emerged: the fringes of copyright law.

Both movies and sports have given rise in recent years to disputes over the copyright ownership of and accompanying reproduction and display rights to tattoos on high-profile celebrities. In 2005, a tattoo artist who inked colorful basketball player Rasheed Wallace sued Wallace, Nike and the ad agency responsible for a commercial prominently featuring Wallace's body art. In 2011, we wrote about the then-pending case in which the artist who created Mike Tyson's infamous face tattoo brought a copyright infringement claim against Warner Brothers for featuring a similar tattoo in the movie The Hangover Part II. Earlier this year, EA Sports was needled by a copyright infringement claim by a tattoo artist based on a nine-year-old video game cover with a larger-than-life illustration of former NFL star Ricky Williams and the art on his bicep. Litigation is currently round-kicking its way through the courts in a similar case brought by a tattoo artist against the maker of a Mixed Martial Arts video game. The Ricky Williams case was dismissed at the request of the plaintiff, and both the Wallace case and the Hangover case subsequently settled for undisclosed amounts, but clearly this issue is not going away anytime soon.

We are unaware of any courts definitively ruling on the copyright status of tattoos, as the parties to such suits thus far have found early settlement to be the preferred solution. However, in her ruling rejecting the tattoo artist's request for a preliminary injunction to bar the release of The Hangover Part II, Judge Catherine Perry did indicate that the artist would likely succeed on the merits of his copyright infringement claim (Whitmill vs. Warner Bros. Entertainment Inc., No. 11-cv-00752 (E.D. Mo. May 24, 2011)). Judge Perry forcefully rejected Warner Brothers' claim that the tattoo was not copyrightable, and also rejected the media giant's fair use and parody defenses.  

Commentators agree with Judge Perry's position on the issue, as the broad protection afforded artists under copyright law covers "original works of authorship fixed in any tangible medium of expression" (emphasis added) and includes pictorial and graphic works. Presumably, even minimally original tattoos meet this threshold. Any subsequent dispute would likely turn on whether the author of the copyrighted content (here, the tattoo artist) retains the rights in the tat, or whether a written agreement establishes a work-made-for-hire or other assignment of rights, and whether the defendant can establish a successful fair use defense. To be sure, most disputes have not centered on the tattoo subject's own display of his tattooed skin, but rather on a third party's use of the inked athlete's image in a public medium such as a video game, movie, or other advertisement.

The Ricky Williams / EA Sports case recently attracted the attention of the NFL Players' Association, which has begun advising players to protect themselves (and potential advertising partners) by obtaining a waiver or license in advance from tattoo artists. This is sound advice, but in light of recent litigation which has brought light (and ink) to the issue, such licenses may not come cheaply, as some tattoo artists are likely telling their wealthy athlete clientele "show me the money." One artist even envisions a six-figure payday for each copyright license assigned to an athlete sporting his ink – good work if you can get it! Depending on the level of celebrity, some artists may instead be content with the free advertising and exposure that comes with being a tattoo artist to the stars.

Artists aren't the only ones seeing a potential goldmine in athlete ink IP. Forbes recently detailed the story of Matt Siegler, a businessman planning to cash in on his collection of exclusive copyright licenses from tattoo artists serving high-profile NBA players (including Lebron James, arguably the most famous athlete in the world). Siegler plans to exploit the designs of the licensed tattoos for apparel and other merchandise, and also stands to profit if the NFLPA's fear of copyright infringement liability influences licensing negotiations with commercial advertisers and video game creators. It is unclear whether Siegler's venture has yielded positive results, but it is possible that his tattoo copyright licenses will turn out to be a golden ticket.

So where is all this headed? In a recent op-ed, two law professors argue that IP rights in tattoos should be viewed as an implied license under which the tattooed athlete obtains reasonable rights regarding the public display and commercialization of the tat based upon the expectations and actions of the parties. This is especially true in the case of famous athletes, the professors maintain, where everyone (including the tattoo artist himself) knows and expects that the tattoo will be highly visible in the public eye. However, the theory of implied license is highly fact-based, and the outcome of any dispute would depend on the understanding between the artist and the athlete. Put simply, the ink is certainly not dry on this legal issue and the empowerment of tattoo artists seems to be growing. It remains to be seen what will be more valuable over the next few years: Colin Kaepernick's cannon of an arm or the lavish tattoos adorning that weapon.

Which Josh Beckett Statistic Is More Impressive: A Regular Season Win Against the Detroit Tigers or a Save for the Texas Ocelots?

He did not win a game on the baseball diamond this year, but Los Angeles Dodgers hurler Josh Beckett scored a legal victory when a federal court determined that Beckett could go forward with his suit to redirect a pipeline built on his Texas deer ranch. Beckett claims his Herradura Ranch is home to a protected species of ocelot and that the pipeline threatens the animal's natural habitat.

The ocelot is a wild cat with a gorgeous dappled coat. Primarily found in South America, the breed can make its home as far north as Texas. The ocelot is an endangered animal, with reports stating that there may be as few as fifty living in the United States. Apparently, some of these vulnerable felines have decided to share the mound with the two-time World Series champion. Beckett himself claims to have seen ocelots cross his property several times and has quickly become the species' super-agent and most ardent conservationist. 

Beckett and his business partners own the 7,000 acre Herradura Ranch near San Antonio – which is enough land for more than 2,000 baseball fields. The ranch offers luxurious multiday guided hunting trips for white-tail deer, doves, quail, javelina, coyote, and bobcat. In the spring of 2012, Eagle Ford Midstream ("Eagle Ford") approached Beckett and offered to pay for the right to build a natural gas pipeline across Heradura. But, like an anxious righty trying to hold Brett Gardner on first base, Beckett balked at the offer. Unfortunately for Beckett, later that year, Eagle Ford procured an eminent domain right-of-way in state court that allowed the pipeline to be built. At the same time, the U.S. Fish and Wildlife Service and U.S. Army Corps of Engineers approved the findings of the shale extractor's experts and certified that Eagle Ford was in compliance with the Endangered Species Act.

Soon after construction commenced in October 2012 and shortly after the Dodgers traded for him, Beckett filed a complaint seeking to reroute the pipeline (Beckett Ventures Inc. v. Eagle Ford Midstream LP, No. 12-00164 (S.D. Tex. filed Oct. 16, 2012)). The complaint stated that Eagle Ford engaged in "willful destruction" of ocelot habitat by clearing the land on Herradura to build a pipeline. Specifically, Beckett alleged that the pipeline builders violated Section 9 of the Endangered Species Act, which prohibits harassment or harm to protected species. The complaint further alleged that "harassment" and "harm" are broadly defined to encompass "significant habitat modification" and "acts [creating] the likelihood of injury to wildlife."

Eagle Ford maintains that there are no ocelots on Herradura and therefore Beckett has suffered no damages. It characterizes Beckett's habitat preservation argument as "merely a sham to leverage additional money from [Eagle Ford] in exchange for an easement" and claims that Beckett is actually concerned about the pipeline's effect on an irrigation system and the ranch's hunting business.

Ruling on a motion to dismiss, U.S. District Judge Diana Saldana found that Beckett should stay in the game and has standing to sue since he allegedly demonstrated actual injury from potential lost ecotourism revenue. The court also rejected Eagle Ford's argument that the relief sought by Beckett is moot because the pipeline is already installed, finding that the court could grant injunctive relief compelling the company to reroute the pipeline or restore the habitat to minimize the disturbance to the endangered ocelot.

Here's hoping that Beckett, who spent much of this past season on the disabled list, is home at the ranch re-habbing and getting ready for Thanksgiving alongside his two pet ocelots.  

[A] Black [Suit] Is the New Yellow [Jersey]: Tracking Armstrong's Newfound Career as a...Professional Defendant?

In his neverending Trek through the courts, Lance Armstrong is facing a slew of suits following his dramatic admissions of doping to Oprah Winfrey. While past Tour de France champions like Eddy Merckx or Greg LeMond have left the sport in great esteem and started their own bicycle lines, Lance Armstrong, stripped of his seven titles, has lately been wearing wingtips more than toe clips. 

For example, in Martin v. FRS Co. , No. 13-01456 (C.D. Cal. filed Feb. 28, 2013), a suit seeking class certification, a putative class of consumers alleges that Armstrong and The FRS Co., a maker of sports beverages and endurance products, deceptively peddled FRS products during Armstrong's record-setting cycling career. According to the complaint, Armstrong is a partial owner of FRS and former team member of the Board of Directors who participated in "significant decisions" regarding FRS's marketing and advertising strategies. With an ad pitch steeper than the climb of the famed Alpe d'Huez, Armstrong told the world that FRS supplements were his "secret weapon," a claim that his attorneys argue was nonactionable puffery and a subjective, nonquantifiable opinion. Of course, Armstrong confessed to Oprah that he could not have possibly won his Tour titles without doping. The plaintiffs' unfair competition and false advertising causes of action allege that consumers would not have bought FRS products or would have paid a lesser price had they known that Armstrong's success was due to the use of PEDs. It remains to be seen whether Armstrong's dismissal motion can knock the plaintiffs out of the saddle by convincing the court that FRS's statements were non-actionable or that the plaintiffs failed to claim a real injury in fact.

The FRS dispute isn't Armstrong's first time in the class action velodrome—a prior suit fell off the back when a court target=_blank dismissed the majority of claims against Armstrong and his publishers relating to his memoirs, "It's Not About the Bike" and "Every Second Counts."  The plaintiffs in that action asserted that marketing the books as works of nonfiction was misleading and that they would not have purchased the books if they had been aware that Armstrong was doping. The court, however, dismissed most counts on the basis that the books and related marketing were protected by the First Amendment.

Indeed, as if on a lone breakaway, Armstrong is being pursued by a peloton of claimants. In addition to the deceptive advertising suits, former teammate Floyd Landis has brought suit against Armstrong under the whistle-blower provisions of the False Claims Act, which typically allows claimants to recover 15 to 25 percent of the recovery for claims relating to a defendant's false claims for payment to the U.S. Government. (See U.S. ex rel. Landis v. Tailwind Sports Corp., No. 10-00976 (D.D.C. filed Apr. 23, 2013). Ever the wheelsucker, the federal government, which paid Armstrong's Tailwind team through a sponsorship agreement with the U.S. Postal Service valued at approximately $40 million, joined Landis's suit in April 2013. The government alleges that Armstrong and the team's violation of the sponsorship agreement and failure to adhere to the rules of cycling undermined the value of the USPS sponsorship and unjustly enriched Armstrong and the team. The Department of Justice is seeking treble damages, an increase that is permitted under the False Claims Act, which could lift the defendants' liability to $120 million.

With these litigations in full tuck, it could prove to be a very long and expensive descent for the embattled Armstrong.

Postscript: 'Raging Bull' Heir Gets Title Fight Before Supreme Court

In our Summer 2013 Edition, we wrote about a copyright dispute between MGM and Paula Petrella, the heir to Frank Petrella, whose works about boxer Jake LaMotta were adapted into the classic film Raging Bull.  In short, Paula Petrella, after entering into negotiations with MGM, the rightsholder for the movie, waited nine years after the talks broke off before filing a copyright infringement suit. The appeals court affirmed the lower court's ruling that Petrella's delay in bringing suit was unreasonable and warranted dismissal based upon the doctrine of laches. With Petrella on the canvas – and the referee about to count her out – she filed a last-gasp petition with the Supreme Court. In October, the Supreme Court took the case, and will answer the following legal question: "Whether the nonstatutory defense of laches is available without restriction to bar all remedies for civil copyright claims filed within the three-year statute of limitations prescribed by Congress...." According to the docket, oral arguments are scheduled for January 21, 2014. As we said in our initial post, the bout will be a prime-time spectacle with a purse of millions in royalties on the line – maybe not the Thrilla in Manilla or the Rumble in the Jungle, but still worth a ringside seat.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions