Copyrights grant exclusive legal rights to the owners of creative works. One protected category is “pictorial, graphic, and sculptural works” — think paintings, graphic art, sketches, illustrations, photos, sculptors and the like. But let’s go out on a limb here. Can a tattoo be the subject of a copyright?
Currently, there are at least three federal cases pending in which tattoo artists (or parties that have licensing agreements with them) assert that when their tattoo designs on the bodies of athletes were reproduced within the images of these athletes in video games, the artists’ copyrights were infringed.
Legal rights in tattoo design?
Previously, one famous tattoo copyright case settled. The tattoo artist who created boxer Mike Tyson’s face tattoo sued when the tattoo was reproduced in the movie The Hangover Part II. Famously (to those in this field, anyway), the judge in that case is said to have remarked that there is no “reasonable dispute” that “tattoos can be copyrighted.” The judge’s thoughts, however, are not part of any written court opinion.
Two of the pending suits concern reproduced tattoo designs on animated players (including LeBron James) in the NBA2K18 video games and in other earlier versions. Another lawsuit involves video games that reproduce tattoos on WWE wrestler Randy Orton.
In a recent Forbes article, an attorney involved in at least one of these cases, said that the NFL Players Association advises NFL players to negotiate copyright licenses or waivers with their respective tattoo artists. So, the validity of tattoo copyrights seems to be taken seriously by at least one powerful and IP-savvy entity.
Case will proceed to trial
We now have some idea of what a judge might think of such a case. On March 30, Judge Laura Taylor Swain of the U.S. District Court, Southern District of New York, allowed one of the LeBron James cases to proceed to trial. (Opinion available on Westlaw at 2018 WL 1626145.)
In Solid Oak Sketches, LLC v. 2k Games, Inc., the judge denied judgment on the pleadings because the evidence needs to be further developed at trial. The nature of the game (different each time played) makes determination of quality and quantity of use difficult. The questions of what an “average lay observer” would think and whether the use is “de minimis” cannot be decided at the pleading stage, she observed.
For the same reasons, she said that she could not determine, based on the pleadings, whether reproducing the tattoo images in the game was “fair use” that would be allowed under copyright law.
Copyright lawyers are watching. Will an opinion on tattoo art soon be written with indelible ink?