Have you ever thought about who owns the copyright to a tattoo? Not many people have, but it is a current topic that needs to be settled by the courts. Currently, the video game company Take-Two is being sued for copyright infringement in regards to its NBA 2k games. Solid Oak Sketches claims to own the copyrights to tattoo designs on LeBron James, Kobe Bryant, and other famous NBA players. Solid Oak claims that the reproduction of the tattoo designs is an infringement of their copyright and that Take-Two must pay them royalties. The court now needs to decide if copyright law protects tattoo designs in regards to reproductions made by films and video games.

U.S. copyright law protects original works of authorship by giving certain rights to the creators. For something to be copyrightable, it must be fixed in a tangible medium, with a minimal degree of creativity. Although human skin is a bit unconventional, it is likely a tattoo would meet the tangibility requirement. Most designs, other than generic words or phrases, would also meet the creativity threshold. If tattoos are copyrightable, the tattoo artist would hold all of the rights to the work, including the right to display or make copies of the work. Most legal scholars agree that a tattoo artist offers his client an implied license to display the copyrighted work, but that license does not necessarily include all of the rights afforded under copyright laws. The client may not have the right to make reproductions or derivatives of the tattoo without the artist’s permission. The right to reproduce celebrity tattoos has recently become a point of contention between tattoo artists and the entertainment industry.

The question of tattoo copyrights in entertainment was originally raised in Whitmill v. Warner Brothers Entertainment. Mike Tyson’s tattoo artist sued Warner Brothers alleging copyright infringement for the duplication of his tattoo design in the movie Hangover 2. Although this case was settled outside of court, the presiding judge indicated she believed tattoos were copyrightable. David Nimmer, a leading copyright scholar, disagreed. After Whitmill, the NFL Players Association advised players to get copyright licenses from their tattoo artists to preemptively avoid litigation.

Since the courts have not ruled on any of the tattoo copyright cases, none of the defenses raised by the defendants have been tested. In the current suit, Take-Two is relying on fair use and de minimis defenses. It claims the tattoos are only seen in significant detail when the player is choosing specific players and that the tattoos are minute when the game view is of the full court. Solid Oak argues that if the tattoos were so insignificant, Take-Two could change them to avoid proper use. Solid Oak also attacks Take-Two’s fair use defense, claiming that the only need for the tattoos is to convince consumers of the realism of the game. According to Solid Oak, the use of the tattoos is purely commercial and therefore not subject to the fair use exception.

Deciding if tattoos can qualify for copyright protection will have broad implications for both tattoo artists and celebrities. There is a strong normative argument that body augmentation should not be subject to copyright protection.  Solid Oak is asking that companies who stand to commercially benefit from the use of a celebrity’s tattoo be required to pay royalties to the tattoo artist. Many celebrities have distinctly recognizable tattoos. Would every company who pays a celebrity to appear in ads or on television have to pay not only the celebrity but also their tattoo artist? Or would the celebrity be required to pay their tattoo artist every time they wanted to profit off their own image? The court’s decision in the suit against Take-Two could drastically change both the tattoo and entertainment industries.

–Meredith Christianson

 

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