You ever thought about who owns that fly piece of art you just tattooed onto your body? It’s indelibly etched into your skin so… you own it, right? Uh…not so fast.

Copyright protection in the U.S. for an original artistic work springs into existence the moment it is created and fixed in a tangible medium of expression.  That means unless you drew the artwork you’re having tattooed onto your body; you don’t own it.  That is unless you commissioned the art and you have a written agreement signed by the artist which states that the art belongs to you.  That usually doesn’t happen. More typically, the tattoo artist draws a sketch onto a piece of paper then etches it onto the customer’s skin without any discussion of ownership. Before your next tattoo session, you may want to have a conversation with the artist regarding ownership, licensing, etc.

This came to mind because related issues were addressed in a recently decided federal lawsuit; Solid Oak Sketches, LLC v. 2K Games, Inc et al. Have you noticed how lifelike the NBA players in video games appear? Everything is duplicated from facial expressions to mannerisms and yes even tattoos. This presented a problem for Solid Oak Sketches, LLC.  The company filed a copyright infringement lawsuit against 2K Games, Inc. and Take-Two Interactive Software for the use of copyrighted tattoos on the persons of LeBron James, Kenyon Martin and Eric Bledsoe in the NBA 2K series of videogames. Solid Oak had an exclusive license to each tattoo. The interesting twist is that the players had given their right to license their likeness to the NBA, and the NBA granted this license to Take-Two. Notwithstanding, Solid Oak argued that the NBA violated their exclusive right to the underlying tattoos on the players and therefore infringed their copyright by using them in the game without a license.

So, who wins? Well, the court decided for a number of reasons that there was no copyright infringement. The first reason relates to how much the tattoos are actually seen during gameplay.  During average play, the NBA stars at issue are not usually featured in such a way where the tattoos are shown in great detail. These players make up only three of over 400 available players in the game. Further, when the three players appear in gameplay the tattoos appear indistinct and they are obscured by the players’ quick movements.

Second, there is the issued of implied license.  Take-Two had what’s known as an implied license to use the tattoos as part of the players’ likeness. You see the tattoo artists had granted the players permission to use the tattoos as part of their likeness prior to granting any rights in the tattoos to Solid Oak. When the tattoo artists performed their services (created art at the players’ request and inked the players skin with the art) the artists intended the players to copy and distribute the tattoos as elements of their likeness knowing full well the players were likely to appear in public, on television, and other forms of media. The court held that because of that implied license and the fact that Take-Two had been granted a license to use the players’ likeness in the NBA 2K games, there was no copyright infringement.

In addition, there was the issue of the fair use defense.  The tattoos shown in the video game were ostensibly only there to accurately depict what the players actually look like. Further, the tattoos are seen infrequently during gameplay and comprise only a small fraction of the overall makeup of the game. The court also found that that Take-Two’s use was not likely to have an adverse impact on the overall market for the tattoos. Accordingly, the court held the fair use defense applied and therefore there was no copyright infringement liability.

The court’s analysis may prove instructive for future cases.  What about situations where a photographer sells prints of a model who has original art tattooed on her or his body? If the tattoo is prominently featured in the photo, might there be potential copyright liability? How far does the implied license extend? Even outside of the context of tattoos, what if you took a picture of street art and then wanted to place the picture on handbags you intend to sell? Things that make you go “hmm.” Consider consulting intellectual property counsel for answers beforehand.

©2020 Albert F.  Davis, Esq.

Disclaimer:

This law update is intended for general information purposes only.  One should not consider the update legal advice or legal opinions relating to any specific facts or circumstances.  An attorney-client relationship is not created by reading this update.  Please feel free to contact A.F. DAVIS LAW for further information.