The Human Body as a Canvas: Should Tattoos Receive Copyright Protection?

February 11, 2016

Permission is required when a living human being’s likeness is used in a video game. But is permission from that person’s tattoo artist or a company claiming to have purchased the copyright for the tattoo design, required to digitally recreate the tattoo? Solid Oak Sketches LLC (“Solid Oak”), a Delaware-based tattoo company, is suing Take-Two Interactive Software (“Take-Two”), the makers of NBA2K16, a basketball simulation video game, in New York Federal Court for copyright infringement. Solid Oak owns the copyrights to the eight tattoo designs created by three artists. Solid Oak states that Take-Two unlawfully used the images “by publicly displaying the … copyrighted works without authorization.” Solid Oak is seeking damages from Take-Two for incorporating the eight tattoo designs. Solid Oak paid several tattoo artists for the authority to license these designs. Neither the NBA, nor any of the players mentioned, are parties to Solid Oak Sketches LLC v. Visual Concepts LLC et al.
The eight tattoos are digitally rendered within the game to reflect real tattoos seen on NBA players. They include Kobe Bryant’s crown with butterflies, DeAndre Jordan’s shoulder scroll, Kenyon Martin’s wizard, Eric Bledsoe’s basketball with stars and script, and four separate pieces belonging to Lebron James. Solid Oak asserts that “[T]attoos are original works of art entitled to full protection of the copyright laws,” and that Take-Two “has been exercising [Solid Oak’s] exclusive rights in their copyrights without their permission.”
Take-Two sold more than 4 million copies of NBA 2K16 in the first week after its release last September 29th. Solid Oak asserts that Take-Two advertised the use of the custom tattoos over social media as a “major feature in the game.” Solid Oak alleges that NBA 2K16 boasts about the “improved visuals, which [includes] smoother looking character models and more individualized tattoos”, and that Take-Two profited greatly from its new-and-improved graphics. While tattoos were used in earlier versions of the game, Solid Oak Sketches didn’t have the rights to them at that time.
Whether tattoos are protected by copyright has not yet been concretely established by legislation, regulation, or litigation. Solid Oak acknowledges in their complaint that the issue has yet to be decided on in court due to numerous settlements preventing a final judicial opinion. For example, the high-profile case, Whitmill v. Warner Bros, in which the artist who created Mike Tyson’s face tattoo sued when the design was replicated without permission in The Hangover, was settled out of court. Also, in 2012, tattoo artist, Christopher Escobedo sued video game company, THQ, alleging that it violated his copyright by reproducing, without authorization, his tattoo design on in-game likenesses of MMA fighter Carlos Condit. Like Whitmill, this was ultimately settled out of court. However, Solid Oak claims, “[T]he copyrighted tattoo designs fit squarely within [the] statutory definition of ‘pictorial, graphic, and sculptural works.’ Many legal authorities on copyright have offered support for this position.” One of Solid Oak’s lawyers, Darren Heitner, stated that, without waivers, a tattoo artist is assumed to be the owner of his or her work, even when it is put on an athlete’s body.
Solid Oak’s tattoo artists were initially willing to license the tattoos to Take-Two for $1.1 million. However, this lawsuit was filed against Take-Two; developer, Visual Concepts; and publisher, 2K Sports, after negotiations failed. Now, Solid Oak is asking the companies to stop using the designs completely and pay as much as $150,000 per infringement.

A central purpose of the Copyright Act is to incentivize the creation of new works by awarding a limited monopoly over works so as to promote progress. However, some scholars assert that courts should deny copyright protection to tattoos because it could carry serious policy implications that are not present with other works of art.

One of the most significant is the potential for intrusion on individuals’ basic human rights, related to the ability of the tattoo artist to control a client’s freedom to make choices with respect to his or her body. This could be seen as undermining the benefits gained by granting tattoo artists copyright protection. Instead of endeavoring to determine whether tattoos meet the 17 U.S.C. § 102  requirements for copyright protection, or engaging in equitable balancing to determine whether granting copyright protection to tattoos would violate public policy, courts should look to the definition of “copies” in the Copyright Act. By interpreting the definition of “copies” as requiring fixation in an inanimate object and not to include the human body, a court will be able to resolve that tattoos are not copyrightable subject matter protected by the Copyright Act. Solid Oak Sketches LLC v. Visual Concepts LLC et al will hopefully aid in providing some official legal guidance.