347-787-6824Tattoos 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
New York University intellectual property law professor Christopher Jon Sprigman says to the New York Times that Solid Oak’s lawsuit “amounts to a shakedown and copyright trolling,” stating further that “[t]hey shouldn’t be allowed to tell LeBron James that he can’t take deals to license his likeness… the ability of the celebrity, or really anyone, to do that is an element of their personal freedom.”14 LeBron James states that his tattoos are a part of his “persona and identity,” saying that if he is not shown with his tattoos, it would not be an accurate depiction of himself.15 In a Declaration of Support for the defendants from LeBron James, he states that the four tattoos in question were “inked in Akron, Ohio,” and in each case, he had a conversation with the tattooist about what he wanted inked on his body. 16
The outcome of this case will set an important precedent on whether or not tattoo artists can demand monetary compensation every time a celebrity’s likeness has been reproduced. Since the rise of litigation, players’ unions and sports agents have been advising athletes to secure licensing agreements before they get tattooed, in order to protect their future interests.17 This way, the athletes have secured their rights while giving artists have an incentive to sign rather than pass up a celebrity client who could be a walking advertisement for their art18.
1 Cam Wolf, NBA Tells J.R. Smith to Cover Up His Supreme Tattoo Or Else, GQ (Oct. 1, 2018), https://www.gq.com/story/jr-smith-supreme-tattoo-nba?verso=true (in which Cleveland Cavaliers’ J.R. Smith was told by the National Basketball Association that they would fine him for every game of the season that he failed to cover up the Supreme logo on his leg, citing the League’s Collective Bargaining Agreement, which states that ‘a player may not, during any game, display any commercial, promotional, or charitable name, mark, logo, or other identification… on his body.’).
2 Jason M. Bailey, Athletes Don’t Own Their Tattoos. That’s a Problem for Video Game Developers, New York Times (Dec. 27, 2018), https://www.nytimes.com/2018/12/27/style/tattoos-video-games.html.
3 Christie D’Zurilla, ‘Hangover 2’ Tattoo Lawsuit Over Mike Tyseon-style Ink is Settled, Los Angeles Times (June 22, 2011), https://latimesblogs.latimes.com/gossip/2011/06/hangover-tattoo-dispute-ed-helms-hangover-2-tattoo.html.
4 Id.
5 Id.
6 1976 General Revision of Copyright Law, Pub. L. No. 94-553, 90 Stat. 2541.
7 17 U.S.C. § 202.
8 Jason M. Bailey, Athletes Don’t Own Their Tattoos. That’s a Problem for Video Game Developers, New York Times (Dec. 27, 2018), https://www.nytimes.com/2018/12/27/style/tattoos-video-games.html.
9 Id.
10 Id.
11 Bryan Wiedey, Tattoos in Sports Video Games Face Legal Issue, Sporting News (Oct. 19, 2018), http://www.sportingnews.com/us/other-sports/news/madden-lawsuit-over-tattoos-nba-2k-lebron-james-ea-sports-2k-sports/16xvqkb1d2hbm1lzs6u3iljaap.
12 Id.
13 Thomas Baker, NBA 2K Tattoo Copyright Suit Offers Two Compelling Legal Arguments, but Only One Seems Practical, Forbes (Jan. 4, 2019), https://www.forbes.com/sites/thomasbaker/2019/01/04/lebron-smartly-sides-with-the-producers-of-nba-2k-in-tattoo-copyright-case-but-will-that-be-enough/#4e08f33c7663.
14 Jason M. Bailey, Athletes Don’t Own Their Tattoos. That’s a Problem for Video Game Developers, New York Times (Dec. 27, 2018), https://www.nytimes.com/2018/12/27/style/tattoos-video-games.html.
15 Solid Oak Sketches, LLC v. 2K Games, Inc. and Take-Two Interactive Software, 1:16-cv-00724, ECF No. 134 (Aug. 24, 2018). (Found at https://www.scribd.com/document/386980896/2018-08-24-Declaration-dckt-134-0#from_embed).
16 Id., at 1.
17 Jason M. Bailey, Athletes Don’t Own Their Tattoos. That’s a Problem for Video Game Developers, New York Times (Dec. 27, 2018), https://www.nytimes.com/2018/12/27/style/tattoos-video-games.html.
18 Id.
In a landmark decision in March of 2020, federal judge Laura Taylor Swain ruled that Take Two Interactive Software’s reproduction of Lebron James’ tattoos was fair use and does not infringe on Solid Oak Sketches’ copyrights. Solid Oak Sketches, LLC v. 2K Games, Inc., 449 F. Supp. 3d 333, 353 (S.D.N.Y. 2020). Because the balance of fairness is extremely fact-sensitive, it must be analyzed on a case by case basis. Evaluation of a fair use defense does not hinge on a bright-line rule but is an exploration of four factors: (1) the purpose and character of the use; (2) the… Read more »
So far, the courts have had no problem ruling that the tattoo art design itself is copyrightable and consumes the full scope of protection under copyright law as other copyrightable subject matters. See Tattoo Art, Inc. v. TAT Int’l LLC, 498 Fed. Appx. 341 (4th Cir. 2012) (deciding that a licensee of tattoo art designs infringed the licensor’s copyrights by displaying altered versions of the designs on a website and by continuing to display the designs after the license was terminated.) However, the courts still resist holding that the tattoos on the human body are also copyrightable. See Solid Oak… Read more »
Tattoos are artistic expressions created by talented individuals. They take time, patience, precision, and creativity to complete so it is understandable why tattoo artists are not happy when witnessing their life’s work depicted in movies and video games without being compensated or giving permission for the use. While Courts have acknowledged that tattoo art is copyrightable and deserve the full protection of the Copyright Act, they have been reluctant to rule that tattoos depicted on the human body in a digital medium (such as in video games) is copyrightable. Those who are alleged to have infringed on the the artist’s… Read more »
It is interesting to note that Take Two Interactive was involved in another copyright infringement case regarding the depiction of athletes in their video games. In Alexander v. Take-Two Interactive Software, the plaintiff tattoo artist filed a copyright infringement suit in the Southern District of Illinois against Take-Two Interactive and World Wrestling Entertainment over the depiction of WWE wrestler Randy Orton in the WWE 2K video games. Similarly to Solid Oak Sketches, Take-Two had replicated Orton’s likeness by digitally reproducing his tattoos that were inked by plaintiff for use in their video games. In that case, the defendants filed for… Read more »
Tattoos are arguably one of the most permanent ways to express one’s individuality. Yet, tattoos and tattoo culture as a whole never seem to stray too far from controversy. Despite a more widespread acceptance of tattoos in modern business culture and society at large, there is still much debate over the legal rights of tattoo artists, the tattoos themselves as pieces of art, and those who adorn them. Solid Oak Sketches, LLC v. 2K Games, Inc. addresses the bulkhead of these controversies and attempts to resolve the most elusive issues therein. The court ultimately ruled that the use of Lebron… Read more »