Who own’s an athlete’s tattoo? How LeBron James and 2K Games may finally provide an answer

Who own’s an athlete’s tattoo? How LeBron James and 2K Games may finally provide an answer

Tattoos within the sports industry are extremely prevalent^[1], and are now reproduced in video games on the virtual personas of athletes.^[2] This enhancement makes the video game users experience more realistic, and may be one reason why Take-Two, 2K Sport’s parent company, saw a tremendous increase in revenue from their game NBA 2K16.^[3]

One may assume that the featured player with a tattoo owns the tattoo.^[4] However, there is a difference between owning the copyright to the tattoo design, and owning the copyright itself.^[5] No court has ever definitively answered whether tattoos are in fact copyrightable.^[6] Although there have been several lawsuits over the issue, they are usually settled outside of court without a court ruling.^[7]

Recently, Solid Oak Sketches —the owner of several designs by the tattoo artists of several NBA basketball players, including Lebron James — filed a claim against 2K Games, alleging they unlawfully reproduced Solid Oak Sketches’ copyrighted tattoo designs in the game NBA 2K16.^[8] They argue that 2K Games infringed on their copyright when featuring their tattoo designs in advertisements and cover art^[9], and are seeking $1.1 million in damages.^[10]

In March of 2018, 2K Games’ motion to dismiss the infringement claims was denied by Judge Swain in the Southern District of New York.^[11] In that motion, 2K Games argued Solid Oak Sketches’ claims should be dismissed because the tattoo’s appearance in the game was di minims and qualified as fair use.^[12] Should this case proceed to trial, the court may finally have a chance to address whether copyright protections should extend to tattoos.^[13]

In addition to the di minims and fair use defenses, 2K Games may be able to succeed by making an implied licensing argument with a number of public policy arguments. 2K Games and a number of legal commentators have argued that a ruling in Solid Oak Sketches favor would result in a “parade of horribles” for athletes and celebrities in the future.^[14]

Arguably, extending copyright protection to tattoos would lead to a slippery slope by presenting courts with the difficult task of drawing a line for how much control a tattoo artist should have over the tattoo’s display.^[15] Some have argued that enabling tattoo artists to control how a tattoo can be used could limit the person’s autonomy over their body.^[16] A ruling in Solid Oak Sketches favor could create a “shakedown” against any publication or TV program in which one of the relevant players appear.^[17]

There is little doubt = tattoos can become so recognizable that they may become the primary source of a celebrity’s identity.^[18] However, “there is a gray area about where that tattoo can be used without infringing on a tattoo artist’s copyrights.”^[19] It may become difficult for courts to balance a copyright owner’s interest in protecting how their work is being displayed with a tattoo bearer’s interest in their right of publicity.^[20]

It’s unclear how this case will end, should it go to trial. In one of the more notable similar cases, Whitmill v. Warner Bros., Victor Whitmill, the designer of Mike Tysons famous face tattoo, filed a suit against Warner Brothers for copyright infringement alleging that Warner Brothers copied, distributed, displayed, and made an unauthorized derivative work for featuring the tattoo on advertisements for The Hangover II.^[21] Whitmall argued that the tattoo had become “one of the most distinctive tattoos in the nation”. Although that case settled before reaching trial^[22], the judge’s criticism of Warner Brothers may offer some insight as to whether tattoos are in fact copyrightable.^[23] Judge Perry stated that “Most of the defendant’s arguments against [copyright infringement] are silly. Of course, tattoos can be copyrighted. I don’t think there is any reasonable dispute about that.”^[24]

Until one of these cases proceeds to trial and receives a court ruling, the question of whether tattoos are copyrightable remains unclear.^[25] However, Solid Oak Sketches lawsuit against 2K Games may finally provide some clarity on the issue.