I’ve been writing about the issue of Tattoo Copyrights for over four years now. Here’s a blog post on the Mike Tyson Hangover II tattoo case from 2012, and one from 2013 on a related topic. The central issue is whether tattoos can be protected by copyright. A newly-filed lawsuit may help resolve this issue.
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The New NBA 2K16 Case
The defendants, including Take-Two Interactive Software, released the basketball video game NBA 2K16 in September of 2015. The game features realistic portrayals of NBA players such as LeBron James and Kobe Bryant – including those players’ distinctive tattoos. The full list of tattoos in dispute is:
• LeBron James: (1) Child Portrait on his inner left forearm; (2) “Hold My Own” on his left bicep; (3) 330 Area Code on his right forearm; and (4) script with a scroll, clouds, and doves on his right forearm.
• Kobe Bryant: Crown with Butterflies on his right bicep
• Kenyon Martin: Wizard on his left shoulder
• DeAndre Jordan: Script with a Scroll on his right shoulder
• Eric Bledsoe: Basketball with Stars and Script on his right shoulder
The plaintiff, Solid Oak Sketches, entered into copyright license agreements with the artists who created the tattoos in question. This, presumably, gives them the right to pursue legal action against anyone who uses those images without their consent.
Before the game came out, Solid Oak made several attempts to enter into an agreement with Take-Two. They requested a total licensing fee of $1,144,000. The parties didn’t come to an agreement, and the game came out as scheduled. On February 1 of this year, Solid Oak sued the defendants in the U.S. District Court for the Southern District of New York (that’s a federal court) on the grounds of copyright infringement.
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Should Tattoos be Protected by Copyright?
I get into the details of the legal analysis in a bit more depth in my 2012 and 2013 blog posts linked above. Here’s the gist of my thoughts, which haven’t changed since then:
Generally speaking, my sense is that there is nothing in copyright law that would prevent a drawing that appears in tattoo form from enjoying the same copyright status as a work in any other medium – particularly when, as is common with tattoos, the work is drawn on paper and then copied onto the recipient’s skin. Once an artist sits down and commits an original drawing to paper, that work is subject to copyright protection. It seems absurd that this protection would be erased when, at some later time, a copy of the work is created in the form of a tattoo – whether that later time is 5 minutes later or 5 years later. However, the rights embodied in the copyright have to be balanced with the tattoo owner’s rights to control and exploit his or her own image, and with fair use considerations.
Unfortunately, no court has actually ruled on this matter. There have been several lawsuits related to tattoo copyright issues, but in every case, the parties have settled before a court could issue a verdict.
According to the plaintiff in this case, the closest thing we’ve gotten to a court opinion is a statement from Judge Catherine D. Perry in the 2012 Mike Tyson case. Judge Perry stated, “Of course tattoos can be copyrighted. I don’t think there is any reasonable dispute about that . . . . [T]he tattoo itself and the design itself can be copyrighted, and I think it’s entirely consistent with the copyright law.”
But a statement from a judge during an early phase of a legal proceeding is not the same thing as an actual judicial ruling once all the arguments have been heard. Nonetheless, I agree with that statement, in principle. Artists whose illustrations are turned into tattoos – and even those artists who create tattoos directly on someone’s skin, without a preliminary drawing – are no less deserving of legal protection than any other visual artist.
Celebrities and public figures have certain rights related to commercial exploitation of their images and likenesses (these are called Rights of Publicity.) Tattoos complicate this issue, but in the end, there’s nothing in U.S. copyright law that should bar artists from enjoying some right to control, and benefit from, the use of their tattoo art.
