New Zealand's most famously tattooed sports stars, like Sonny Bill Williams and Brendon McCullum, could face legal battles if changes aren't made to copyright laws, says University of Auckland Associate Professor Alex Sims.

Although it has yet to happen in New Zealand, a growing number of tattoo artists overseas are attempting to sue when their work on celebrated clients appears in advertisements or in video games without their consent.

The latest example is a lawsuit filed in the New York Federal Court earlier this year against the animators of the NBA 2K video game series. Tattoo company Solid Oak Sketches alleges the game makers violated the copyrights of its artists by replicating the real-life tattoos of American basketball stars like LeBron James and Kobe Bryant.

Sims, Head of Department of Commercial Law at the University, says with tattoos becoming "more than mainstream" in society, tattoo artists are now looking to copyright for protection.

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The heart of the issue is exactly who owns a tattoo - the bearer or the artist.
"Tattoo artists haven't tried to enforce their copyrights and moral rights until now.

Tattooing was untouched by intellectual property law. But, given the increasing number of tattoos and the fact the art of tattooing is becoming more and more respected, that is now changing," she says.

"People will be limited in the way they can portray their bodies and how other people can portray them in movies and documentaries. It's limiting people in their personal movement and expression. In the United States, it's now having serious ramifications."

Copyright goes further in New Zealand than in the United States as tattoo artists there do not have moral rights in their work. In New Zealand, a tattoo artist could sue for breach of their moral rights if changes are made to their design by a second tattoo artist.

The gloves came off when Missouri tattoo artist S. Victor Whitmill, the creator of boxer Mike Tyson's "Maori-inspired" facial tattoo, took a copyright infringement lawsuit against Warner Bros in 2011. Whitmill sought $US30 million in damages and an injunction to prevent the release of the movie The Hangover Part II, in which actor Ed Helm sported a replica of the same tattoo. The case was settled out of court and the movie release went ahead.

But the artist also drew criticism from Maori - Professor Ngahuia Te Awekotuku told the NZ Herald at the time that Whitmill had shown "incredible arrogance" in his claims of ownership.

"It is astounding that a Pakeha tattooist who inscribes an African American's flesh with what he considers to be a Maori design has the gall to claim ... that design as his intellectual property," she said. "The tattooist has never consulted with Maori, has never had experience of Maori and originally and obviously stole the design he put on Tyson."

Nike was sued when it featured NBA player Rasheed Wallace's distinctive Egyptian royal family tattoo in a multi-million-dollar ad campaign; soccer star David Beckham received the same unwanted attention when he planned to use his famous guardian angel tattoo in a promotional campaign. Again, the cases were settled out of court.

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Our own inked sports stars, under current law, would need to get the permission of their tattoo artists if they wanted to feature their artworks in advertising or promotional material, Sims says.

"If an artist objects, it could scupper big advertising campaigns. It's not good enough to say our sports stars should be protecting themselves. Copyright law is complex and you shouldn't have to be an expert in that, and in contract law," she says.
"What if they were unknown when they got the tattoo done and subsequently became famous?"

With the Copyright Act 1994 about to undergo a review, Sims - president of the Asia Pacific Copyright Association - believes it is the ideal time to limit the rights of tattoo artists. She argues the protection afforded to the copyright owner of a tattoo can't be the same as that given to "a painter whose vehicle is a canvas".

Any New Zealander who gets a tattoo is subject to the current copyright laws. If a person asking for a custom tattoo has created the design themselves, then they are the owner - unless a contract was drawn up at the time, stating the artist has copyright to the design.

"You could find that someone has drawn all their own designs, only to turn around and find that under the contract they signed, the artist is actually the copyright owner," Sims says.

Without a contract, if the client and the artist worked together closely on the design, there is joint ownership and each has moral rights to the tattoo.

Sims believes tattoo artists should still have protection under the law, particularly from other artists copying their designs: "It used to be the social norm that tattoo artists did not copy; if they did, it would result in being blacklisted or public shaming.

"But if someone really likes a friend's tattoo and they get a replica, while they can't be sued for copyright infringement, the second tattoo artist involved could be sued. That's protecting the original copyright owner."