Tattoos and Copyrights - Part II

            I previously wrote about the NBA 2K copyright lawsuit that involved reproducing the tattoos of famous athletes in video games a few years ago. Recently, the district court issued its opinion in the case, and it was in favor of the video game company.

            In 2016, Solid Oak Sketches, LLC sued the makers of the NBA 2K video game series. Solid Oak had acquired the exclusive license to a number of tattoo designs that were tattooed on famous basketball players, notably among them Lebron James, and it alleged the NBA 2K games infringed its copyright rights because the video game series recreated the tattoos on the athletes in the game.

            The court ruled that the use in the NBA 2K games was de minimis, there was an implied license, and it was a fair use.

In ruling that the use was de minimis, which means that the copying was trivial and did not create a substantial similarity between the works, the judge noted that the tattoos at issue were only on three players out of 400 available in the game, were hardly, if at all, visible or distinct during game play, and average game play was unlikely to include the players at issue.

The court also found that an implied license existed for the players to “use the Tattoos as part of their likenesses…”.[1] In determining the implied license, the court emphasized that

(i) the Players each requested the creation of the Tattoos, (ii) the tattooists created the Tattoos and delivered them to the Players by inking the designs onto their skin, and (iii) the tattooists intended the Players to copy and distribute the Tattoos as elements of their likenesses, each knowing that the Players were likely to appear “in public, on television, in commercials, or in other forms of media.”[2]    

Because the players had an implied license from the tattoo artists, that existed before the license granted to Solid Oak, and the players granted the NBA the right to exploit their likeness, 2K Games use of the players’ likenesses, including the tattoos, is not an infringement.

            Finally, the court found the use of the tattoos in the games to be fair use. In evaluating the fair use factors, the court found (i) the commercial use of the tattoos to be negligible, as they constituted a minor part of the game and were barely visible,[3] (ii) the tattoos at issue had limited expressive value,[4] (iii) even though the tattoos were copied in total, it was done to accurately depict the players, and the tattoos were barely visible in the game,[5] and (iv) there was no impact on the market value of the tattoos because video games are not a substitute for tattoos, and a market for licensing tattoos to be used in video games would be unlikely to develop.[6] 

            As I mentioned previously, this issue had been bubbling up for some time. While tattoos, generally speaking, are entitled to copyright protection, it had been an unanswered question of how far copyright protection would extend once the tattoo was on someone. This decision goes a long way in determining the scope of that protection. I think it is a solid decision, and, if appealed, I hope it is sustained.

            After reading it, however, I am concerned about the emphasis on how the tattoos are barely visible in the game. This leaves open possible arguments that if the tattoo is visible, or featured prominently, such as in a portrait of a tattooed subject, then it could be an infringement. Hopefully, the implied license theory outlined in this decision would continue to protect an artist in such a situation. 

            Until the decision is upheld on appeal, it is still risky to recreate tattoos without permission. As I mentioned previously, if you are a celebrity whose likeness is likely to be recreated, obtain a waiver or assignment of any copyright rights the tattoo artist may have. If you are someone creating a work incorporating a tattooed subject, either have them indemnify you from harm, if it is commissioned, or proceed with caution, as the law regarding accurate recreations of tattooed individuals is still unsettled.

---

[1] Solid Oak Sketches, LLC v. 2K Games, Inc., No. 16-CV-724-LTS-SDA, 15 (S.D.N.Y. 2020).

[2] Id.

[3] Id. at 17-19.

[4] Id. at 20.

[5] Id. at 21.

[6] Id. at 22.

Tattoos and Copyrights

This week’s post discusses a growing lawsuit trend in the entertainment industry. Namely, tattoo artists suing content producers when the work they tattooed upon a famous individual is reproduced in a movie, video game, etc. The trend began a few years ago when the artist responsible for tattooing Mike Tyson’s face sued Warner Bros. before the release of The Hangover Part II. The basis for the artist’s claim was the movie recreating Tyson’s tattoo on Ed Helms' character’s face. The case ended up settling out of court, and there was no ruling on the extent of copyright protection for tattoos being reproduced in other forms of media.

Recently, a company sued the maker of the NBA 2K video games for copyright infringement for recreating NBA players’ tattoos in the game. Due to a favorable initial ruling for the video game maker reducing its possible liability, the game maker is asserting some strong claims against lawsuits of this type, including that the use should be considered a fair use and is a de minimus use, meaning it's too trivial to merit consideration. It would be helpful to have judicial decision directly addressing the issue of recreated images of tattooed individuals.

Personally, I find this trend, and the mere fact that these lawsuits exist, annoying. While I’m inclined to acknowledge some tattoos can be creative enough to merit copyright protection, I cannot comprehend copyright law being used to sue third parties because they recreated a true-life representation of the tattoo artist’s client in some form of media. With the prevalence of tattoos on many people, the risk to content producers can be very high unless they take precautions to protect against such lawsuits. The primary methods to avoid being sued are to seek a license from the tattoo artist, have the tattooed person seek permission and/or indemnify you, or do not reproduce tattoos at all.  

Hopefully, the courts or congress (yeah, right) will address this issue and clearly define the copyright rights of tattoo artists and their patrons as it relates to portrayals in media. It seems to me if a patron obtains a tattoo he should be allowed to be photographed or otherwise reproduced without having to receive the tattoo artist’s permission. It should be an assumed part of the deal—an implied license for the patron to give consent to others who are reproducing his image. Copyright law should not be used to prevent someone from being truthfully depicted in various forms of media just because he is tattooed.     

As of right now, there have not been any lawsuits in the comic book world, but if you are in the habit of drawing famous tattooed people, or otherwise drawing tattoos on individuals in your work, you should proceed carefully.

For more on the NBA 2K lawsuit, read The Hollywood Reporter story here.

Side note: If you’re famous or on a career path where your image will be reproduced and you want to get a tattoo, you may want to have the artist sign a release giving you complete control over the design and reproduction rights. Your production partners will thank you.