If you are a regular reader of our newsletter, you may recall that in 2014 we wrote about a copyright case involving Mike Tyson’s Maori-inspired facial tattoo. In that case, the tattoo artist, Victor Whitmill, sued Warner Brothers Entertainment in an attempt to stop the release of the movie, “Hangover Part II.” in which one of the characters was tattooed in an identical manner to Mike Tyson. Recall that the wearer of a tattoo has no claims to the copyrights in the design unless he or she has specifically obtained an assignment or license from the artist.  More often than not this does not happen and the artist retains those rights or is free to license them to others – a lesson to tattoo wearers.

The Whitmill case settled and we wrote that as a result of the lawsuit, the NFL Players Association was urging athletes to obtain licenses for their body art.  Even though the Whitmill case did not create legal precedent, the copyrightability of tattoos is not in dispute. Tattoos are original works of authorship that are fixed in a tangible medium (skin) of expression. Disputes over copyright ownership, however, continue and recently NBA players – or, rather, their tattoos – are the focus.

In February 2016, Take-Two Software was sued by Solid Oak Sketches for $1.1 million. Solid Oak claimed to own the copyright of several tattoo designs worn by NBA stars Lebron James, Kobe Bryant, Kenyon Martin, DeAndre Jordan and Eric Bledsoe. According to the complaint, Take-Two Software allegedly infringed Solid Oak’s copyrights by publishing the NBA2K 16 video game, which featured those players and their tattoos.

It’s now 2017, and the litigation continues.  Recently, in effort to end the dispute once and for all, Take-Two filed a motion arguing that it has the right to showcase players as they appear in real life. Take-Two argued that if the court were to take Solid Oak’s position to its logical conclusion, it would mean that whenever these figures appear in “public, film or photographs,” they should be enjoined from doing so and pay damages to Solid Oak.This is particularly troubling at a time when tattoos are becoming increasingly popular.” Take-Two also argues that that “even when [the tattoos] appear, they are not prominent as the game camera generally uses a full-court shot with the players’ avatars appearing as small images… This makes the tattoos difficult (if not impossible) to see even when the players appear in the game.”  Finally, Take-Two argues that their use of the players’ images is “fair use” because Take-Two’s use of the tattoos provides authenticity and that “any creativity must be weighed against the fact that the tattoos were copied to depict real-world subject matter realistically.”

So, you judge.  The stakes here are high and we will report on the court’s decision when it issues.

Image Credit: CC BY-SA 4.0

— Adam G. Garson, Esq.