By Melissa Bergmann, 2L member
Tattoos, once thought of as taboo, are now a generally accepted and popular form of expression and adorn the bodies of musicians, models, athletes, and movie stars. Likewise, video games, such as the NBA 2K series, that feature depictions of real athletes have also gained increasing popularity. These two trends lead to the question of who owns the copyright to a tattoo inked onto the skin of an athlete featured in a video game.
Tattoos are capable of copyright protection as copyrights protect original works of authorship (e.g., pictorial or graphic, such as an image in a tattoo) that are fixed in a tangible means of expression (e.g., inked on skin). This concept is supported by Whitmill v. Warner Bros. Entertainment Inc. (E.D. Mo., 2011). In this case, a tattoo artist attempted to stop the release of The Hangover: Part II because of alleged copyright infringement based on a tattoo he inked on Mike Tyson’s skin.
The presiding U.S. federal court stated, “Of course tattoos can be copyrighted… I don’t think there is any reasonable dispute about that.” The application of such copyrights to tattoos depicted on an athlete’s skin in video games complicate this concept.
The United States District Court for the Southern District of New York dealt with this issue in the novel case, Solid Oak Sketches, LL v. 2K Games, Inc. and Take-Two Interactive Software, Inc., (2020). The plaintiff alleged copyright infringement in relation to the reproduction of five tattoos that were depicted on NBA players Lebron James, Kenyon Martin, and Eric Bledsoe in the Defendant’s basketball video game in versions 2K14, 2K15, and 2K16.
The court granted summary judgment for the defendants on three different grounds.
First, the court found that the use of the tattoos in the video games was de minimis because the tattoos are rarely in the game, and when they are featured, they are so small and distorted that they are unrecognizable.
Second, the court found that the tattoo artists gave the players an implied license for unrestricted use of the tattoos as elements of the players’ likeness. Accordingly, the court held that Solid Oak could not license the tattoos because they are affixed to the player’s bodies and Solid Oak does not have the publicity rights to the players’ likenesses, which include the tattoos.
Finally, the court found that the tattoos featured in the game constituted fair use because the tattoos had previously been published and the designs are more factual than expressive.
Other courts have taken a more forgiving stance as to a tattoo artist’s copyright protections, such as the United States District Court of Southern Illinois in Alexander v. Take-Two Interactive Software, Inc., (2020). In this case, a tattoo artist alleged that Take-Two infringed her copyrights in a tattoo that she applied to WWE wrestler Randy Orton by depicting the tattoo on Orton’s character in Take-Two’s video game WWE 2K.
The court denied Take-Two’s motion for summary judgment, disagreeing with Take-Two’s defenses that the tattoo use was de minimis, authorized by an implied license, and constituted fair use. The court found triable issues of fact existed as to the existence and scope of the implied license and whether the artist and Orton discussed permissible forms of copying, distributing, and sublicensing the tattoo.
The legal implications of tattoo depiction in video games are still novel to most courts and riddled with underlying factors, such as the fame of the individual being tattooed and what court is governing the dispute. James himself in a Declaration of Support for Take-Two stated that his tattoos are part of his persona and identity, and the use of his image without his tattoos undermines his publicity rights and deprives him of his right to license his own body.
As a preemptive measure in the wake of such disputes, video game creators who depict celebrities should protect themselves by obtaining necessary rights from the tattoo artist through waiver, instead of relying on de minimis and fair use defenses.