Tattoo Copyright: NBA Superstars, Tattoos, and Video Games

Adam Meyer, KLJ Staff Editor[1]

On February 1, the producers of NBA 2K16, a basketball video game, were sued in the Southern District of New York by Solid Oak Sketches LLC (“Solid Oak”) over claims that the game infringed tattoo copyrights.[2] Solid Oak owns the rights to the tattoos on a number of NBA players and claims that the video game has infringed on eight of their copyrights by displaying the tattoos of LeBron James and Kobe Bryant without authorization.[3]

But are the tattoos adorning our favorite NBA superstars copyright protected, and if so, what are the implications?  This is a question yet to be addressed by the courts.[4]

Copyright protection is available for “original works of authorship fixed in any tangible medium of expression.”[5]  If “original” and “fixed,” the copyright protection vests in the author or authors of a work.[6] The owner of a copyright is granted certain exclusive rights, including reproduction, distribution, display, and right to prepare derivative works.[7]

To be considered original, “the work must be created by the author and  . . . possess[] at least some minimal degree of creativity.”[8]  It is undeniable that many tattoos are an expression of an author and do indeed possess a spark of creativity.[9] However, there are many generic tattoos that do not meet these requirement: words, hearts with arrows, nautical anchors, and barbed wire.[10]  Thus, the originality of a tattoo is not an automatic presumption.[11]

If “original,” the tattoo must also be “fixed in any tangible medium,”[12] that is “sufficiently permanent or stable . . . for a period of more than a transitory duration.”[13] There are normally two mediums to which a tattoo artist “fixes” his or her design, either to paper or to the human body.  Both would likely pass the requirement of being sufficiently stable for more than a transitory period.[14] Solid Oak’s complaint states their “copyrighted tattoos” are fixed to human skin and makes no mention tattoos being fixed to paper, even though their ownership interest is in the preliminary drawing for the tattoos.[15]

Additionally, there is an important distinction between protection of the preliminary tattoo drawing and the tattoo permanently fixed to a person.  If copyright protection is in the preliminary drawing of a tattoo, the copyright protection analysis would not differ from other types of drawings.  However, if the copyright protection is in the tattoo fixed to a person, the analysis becomes much more complicated and raises significant public policy concerns; namely, that a person could be controlled by the copyright owner.[16]   For example, if Solid Oak is granted copyright protection, the basketball players could potentially be told when the tattoos on their bodies could be displayed, reproduced, or distributed.[17]  Several people have suggested that because of this direct control, tattoo copyright should be disfavored on the basis of the Thirteenth Amendment’s prohibition of “involuntary servitude and other badges of slavery.”[18]

This constitutional objection has been rejected by others who believe that the norms of the tattoo industry protect against this involuntary servitude, because artist rarely sue their clients over the display of a tattoo and there is an implied license for the tattoo to be displayed.[19]  These norms of the industry might well exist; however, Solid Oak is a third party that buys the rights to the tattoos directly from artists.  It is not in part of the artist-client relationship, and it may see the potential in having direct control over the use of the tattoos.[20]  If tattoos are found to be copyrightable, courts should consider these important policy concerns.

Ultimately, it is unclear how Solid Oak’s infringement claims will be decided; however, if history is any indicator, this case will likely settle long before any court can decide the issue.

[1] J.D. expected May 2017.
[2] Darren Rover, Makers of NBA2K Sued for Using Players’ Tattoos Without Permission, ESPN (Feb 1, 2016), http://espn.go.com/nba/story/_/id/14693836/makers-nba2k-sued-graphically-representing-tattoos-players-permission.
[3]  Erik Larson, LeBron, Kobe Tattoos in Video Games Trigger Copyright Suit, BloombergBusiness (Feb 1, 2016, 6:05 PM), http://www.bloomberg.com/news/articles/2016-02-01/lebron-kobe-tattoos-in-video-games-trigger-n-y-copyright-suit.
[4] All of the previous tattoo copyright cases have settled before trail. See Whitmill v. Warner Bros. Entertainment Inc., No. 4:11-CV-752 CDP (dismissed E.D. Mo. June 22, 2011); Complaint, Allen v. Electronic Arts, Inc., 5:12-CV-3172, 2012 WL 6852208 (W.D. La. Dec. 31, 2012) (dismissed Apr. 9, 2013); Escobedo v. THQ Inc., 2:12-CV-02470, 2012 WL 5815742 (D. Ariz. Nov. 16, 2012).
[5] 17 U.S.C. § 102(a) (West 2015).
[6] 17 U.S.C. § 201(a) (West 2015).
[7] 17 U.S.C. § 106 (West 2015).
[8] Feist Publ’ns, Inc. v. Rural Tel. Serv., 499 U.S. 340, 345 (1991).
[9] Courts do not determine the level of creativity expressed in artwork or the quality of the work.  See Blistien v. Donaldson Lithographing Co., 188 U.S. 239, 251-52 (1903).
[10] Michael C. Minahan, Copyright Protection for Tattoos: Are Tattoos Copies?, 90 Notre Dame L. Rev. 1713, 1727 (2015).
[11] Id.
[12] 17 U.S.C. § 102.
[13] 17 U.S.C. § 101.
[14] Manahan, supra note 9 at 1728.
[15] Complaint, Solid Oak Sketches v. Visual Concepts, No. 16-cv-00724, ¶ ¶  33-38 (S.D.N.Y. Feb. 1, 2016).
[16] Id.
[17] See 17 U.S.C. § 106 (West 2015).
[18]Yolanda M. King, The Enforcement Challenges for Tattoo Copyrights, 22 J. Intell. Prop. L. 29, 67 (2014).
[19] See id. (stating that tattoo artists intend to grant the right of public display to tattoo bearers).
[20] See Complaint, Solid Oak Sketches at ¶ ¶  33-38.