As tattoos become more common, especially among athletes, copyright claims arising from the display of this art form on electronic media, from television appearances to video games, have become more common. An agency representing tattoo artists has challenged the unlicensed reproduction of their work in video games. Solid Oak Studios filed suit against Take-Two interactive on February 1st alleging copyright infringement arising from the reproduction of designs they own in the NBA 2K video game series. Solid Oak Studios, a small agency representing tattoo artists, had demanded $1.1 million from Take-Two for the right license their designs last summer. The complaint alleges that Solid Oak never received any such compensation. A list of the tattoos at issue is available here.

The compliant states that there has been no decision on the matter of tattoo copyrightability, and there have been a number of out-of-court settlements on the issue in recent years. Court have found defendants liable for damages arising from breaches of licensing agreements, but the issue of who owns the copyright to tattoos remains an open question. Some scholars argue that there is an implied license from artists to athletes to display inked artwork on television or in the stadium. However, the copyright may arguably belong to the players themselves. The child’s portrait on LeBron James’ forearm, for example, would have involved a collaboration between James and the artist.

Ultimately, the disposition of this suit could have far reaching effects. Should Solid Oak and its artists be held to own the copyrights, television and film producers could find themselves forced to purchase licences from artists to display their work. As anyone who has watched an NFL or NBA game recently knows, this could present a logistical nightmare for networks and the sports’ governing bodies alike. Should the court side with Solid Oak and find that there has been a violation of copyright laws, I would hope that their holding would be quite limited. Otherwise, there the court could risk creating a situation where artists and clients are forced to negotiate the rights to the artwork upfront, or risk protracted legal battles should their work later find itself depicted elsewhere.

Tony Jackson

 

One Response to Solid Oak Studios Tests Boundary of Tattoo Copyrightability

  1. gmiraglia says:

    An issue begged by this inquiry is ownership, the article is written as if the tattoo artist is the owner, but there may be an interesting case to be made for the individual permanently adorned with the work. It may be beneficial to characterize the artist as an independent contractor/employee such that the tattoo has become work-made-for-hire by individual adorned with such artistry.

    I wonder, would not some types of tattoos, perhaps those especially evocative or identifiable to the artist, reach into the realm of trademarks.