Got Ink? Wallace Sued for Copyright Infringement

Usually, when big-time athletes get sued, they will settle the suit quickly for a nominal sum. After all, they have tons of money and don't want to get caught up in prolonged litigation that will probably end up costing them more. In this case, though, I hope Rasheed Wallace does not settle because the case involves a fascinating copyright issue.

In 1998, Rasheed Wallace contacted Matthew Reed, a well-known tattoo artist, about having work done on his arm. Wallace wanted the tattoo to be an Egyptian-themed family design, and for $450, Reed researched, designed and inked the tattoo on Wallace's arm. The tattoo has become one of the most distinctive in the NBA (photo) and has gotten Reed a great deal of exposure, which he wanted.

However, a new Nike advertisement may have taken the publicity a step too far. Although I have not seen it, the advertisement, which appeared on television and the Internet, focuses on the tattoo and its design. According to one story, "Wallace told Nike and ad company officials either that he owned the intellectual property rights to the tattoo image or shared them with Reed." Reed claims, however, that he owns the copyright in the tattoo and that the advertisement violates his intellectual property rights. Accordingly, he has filed suit.

This case is interesting for a number of reasons. One, the copyrighting of tattoos and piercings is very much an open issue with no clear resolution. Of even more importance is the play of the first sale doctrine. Under this rule, once an individual buys a copy of a work, she can make any use of it that she desires, other than re-copying it. For instance, if I buy a book, I cannot make a copy of it for my friend, but I am welcome to loan it to my friend, use the book as a coaster, or rip it up and use it for kindling. I don't own the copyright in the material, but I own that copy.

This issue is even more pronounced when it comes to body art. After all, this tattoo takes up most of Wallace's right arm from his elbow to his shoulder. While the first use doctrine does not protect commercial uses, it would be hard for him to appear on a television ad without the tattoo being seen. On the other hand, if the ad centered on the tattoo, perhaps Reed has more of a case. From the standpoint of legal curiosity, though, I am rooting against settlement so that some answers to these questions can emerge.

You can see the complaint and some other documents here.

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