Tattoos are permanent, often complex, creative, and original pieces of work created by a tattoo artist. Recently, litigation has come up regarding tattoos on famous athletes. While most issues involving tattoos on athletes are more easily handled — such as J.R. Smith’s tattoo of the brand Supreme on his leg1 — there are questions of whether a tattoo is subject to copyright protection when it is prominently displayed and reproduced on a famous athlete in a video game. This question is at the center of a lawsuit filed by Solid Oak Sketches against Take Two Interactive Software as well as two other producers of the popular NBA 2K video games based on the video games’ reproductions of players’ tattoos, including LeBron James.2
A similar issue arose in 2011, in which tattoo artist S. Victor Whitmill claimed to have copyright ownership of Mike Tyson’s face tattoo, with the tattoo in question given to Tyson in 20033. Whitmill sued Warner Bros., claiming that the popular film Hangover 2 infringed on his work when they reproduced Tyson’s tattoo on a main character’s face4. While Whitmill’s complaint failed to temporarily enjoin the studio from releasing the film in theaters, the case was settled out of court and now leaves an underwhelming amount of case law on the subject.5
The Copyright Act of 1976 gives
protection to artists that establish that: (1) their creation is the
type of work that is protectable; (2) their creation is an original and
creative work; and (3) the creation is affixed to a tangible medium for
expression.6
Further, § 202 of the Copyright Act states that “ownership of a
copyright… is distinct from ownership of any material object in which
the work is embodied.”7
This means that a tattoo artist does in fact have copyright ownership
over original and creative tattoos that they give, even when those
tattoos are on another person’s body. However, there is an implied
license that allows people to freely and publicly display their tattoos —
for example, on television, film, and magazines — so for most people,
this is not a problem. 8However,
this issue has arisen because LeBron’s tattoos are not only being
displayed, but they are being digitally reproduced in a video game,
causing an issue for copyright infringement issue.9
The company Solid Oak Sketches obtained the copyrights for two of LeBron James’ four tattoos in question — the portrait of his child and the area code — before suing in 2016 because they were used in the NBA 2K series.10 Take Two argues a fair use defense, stating that the tattoos are covered under fair use and are not a critical component of the video games, seen only fleetingly or rarely.11 However, that argument may not hold water due to the time and energy put into recreating both the athletes and tattoos with incredible accuracy.12 Further, this argument did not survive the motion to dismiss, with Judge Laura Taylor Swain finding that the defenses presented by Take Two are fact-intensive and will require more evidence.13
