A tattoo is undoubtedly a work of art, and once inked onto a person’s skin, that art is permanently “fixed” as a part of that person. But is it “fixed in a medium” as required for protection under the Copyright Act?
That is the question posed by the makers of the wildly popular basketball video game series, NBA2K, in answering a lawsuit brought by the owners of the copyrights to the tattoo designs featured on some NBA players in this and prior years’ games. After making a deal with the tattoo artists to exploit their designs in return for a royalty, Solid Oak Sketches, LLC offered 2K Games, the makers of the NBA2K series, a license for the tattoo designs, but they declined. Ultimately Solid Oak filed suit for copyright infringement against the video game makers and developers, Visual Concepts LLC, 2K Games Inc., and Take-Two Interactive Software, Inc. on February 1, 2016 after this year’s video game, NBA2K16, was released.
Tattoos meet copyright standards
The Copyright Act has two requirements for copyrightability: the work must be an original work of authorship, and it must be “fixed in a tangible medium of expression.” The “fixation” requirement is not limited, but may be “any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” The definition section bolsters this wide view of the requirement: “A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” (Emphasis supplied.) No one would argue that an individual’s body is not permanent or stable enough to be a medium of expression.
The issue of the copyrightability of tattoo designs is well settled, as they are original works of authorship registrable in the Copyright Office just like any other art. The copyrightability of a tattoo design on a person’s skin, which is only one “copy”, has been questioned by legal scholars and the defendants in this case. However, a tattoo on a person can be copied, reproduced, and communicated, just like other works, through copies of the tattoo on a person’s skin reproduced in other media. In the case of the tattoos on NBA players in the NBA2K games, the works are copied and reproduced not only hundreds, but MILLIONS of times in the games.
Owners have exclusive rights
Under the Copyright Act, the owner of the copyright, whether the original artist or his or her assignee, has the exclusive right to exploit the work. This includes the right to copy and reproduce the work, to publicly perform or display the work, and to prepare derivative works. The very fact that 2K Games reproduced the tattoos on NBA players’ bodies for its games, and also reproduced them on their product packaging and in their advertising materials, shows that the tattoos on a body are capable of being reproduced in other media. Making these copies and exploiting them commercially is the sole right of the copyright owner. Even LeBron James could not make copies or license others to make copies of his own tattoos in this case, since without a waiver, it is assumed that tattoo designs are owned by their creator, not the person who pays to have that design inked on their skin. This was illustrated in the lawsuit filed by the tattoo artist who created Mike Tyson’s tribal face tattoo against Warner Brothers for reproducing the tattoo on a cast member of the movie “The Hangover 2” and using it prominently in its advertising. Tyson had signed an agreement that the tattoo design was solely owned by the tattoo artist, so he alone had the right to reproduce the design. Warner Brothers settled the case with the artist shortly after the movie was released. There have been several other cases in which tattoo artists have sued to stop the reproduction of their tattoo art in other media for profit. Tattooist Matthew Reed sued NBA star Rasheed Wallace and Nike to stop the use of the tattoo in a sneaker ad which actually featured a simulation of the tattoo’s creation. Soccer icon David Beckham’s tattooist sued him over a proposed advertising campaign which revolved around a tattoo created for him. Both athletes and Nike settled out of court with the artists.
NBA2K series is a multimillion seller
According to sales figures, NBA2K16 shipped an impressive and record breaking $4 million copies the first week of its release. Revenue for Take-Two rose substantially in the second quarter of 2015, when NBA2K was released, to $364.9 million, a 169% increase from the previous year. Also digital downloads of the game doubled from the prior year. Take-Two’s 2K Sports game developers have been called “The kings of customization”, and are described by reviewers as having “upgraded their tattoo game” by allowing gamers to choose from 1500 tattoo designs that can be used to create “almost and endless array of virtual body art.” So 2KSports can offer 1500 tattoo designs to customize their new game, but they do not want to pay for those designs that help them make their millions.
License offer rejected
Solid Oak Sketches, through their attorneys, attempted to negotiate a license for future uses of their copyrighted tattoo designs in early summer 2015, before the latest version of the game was released. The attorneys for Solid Oak offered a confidential settlement in compensation for 2K’s “ongoing acts of copyright infringement” in their unlicensed use of the tattoo designs in earlier years’ versions of the game. The letter pointed out that several of their clients’ copyrighted tattoo designs, namely those on LeBron James and Kobe Bryant, were featured prominently not only in the games, but also on the cover photos and advertising for those games. LeBron James was pictured on the cover of NBA2K14, with the disputed tattoos visible; that version sold over 7 million units. Those tattoos on LBJ were said to be “the face” of the 2014 game, making the tattoos’ marketing and promotional value several times higher than the other tattoos. After several correspondences between the Solid Oak attorney and the principals of 2K Sports, the game company terminated the negotiations and continued with the production and release of NBA2K16.
Damages for Copyright infringement
Under the Copyright Act, damages for infringement can be calculated from the copyright owner’s actual damages suffered as the result of the infringement, or the owner can elect at any time before judgment to recover an award of statutory damages, which can range from $750 to $150,000 per infringement, depending on the willfulness of the infringement. In addition, the court has the discretion under the law to allow recovery of full costs by or against a party, including reasonable attorney’s fees to the prevailing party.
In their attempt to negotiate a settlement and license for future use of its tattoo designs with the heads of 2K Sports and the other defendants, Solid Oak attorneys set out what they considered a reasonable license fee. Since the courts have not decided the issue of damages for tattoo design infringement due to out of court settlements in several recent cases, and Solid Oak did not have access to 2K’s sales and revenue numbers for sales of the infringing games, the attorneys calculated the potential damages according to the only public damage award known for tattoo infringement. That award of $22,500 by a bankruptcy court to the tattoo artist Christopher Escobedo, who created a tattoo visible on an athlete in the video game “UFC Undisputed” which sold 4.1 million copies, was appealed as inadequate, and the artist settled for an undisclosed amount. Although the attorneys for Solid Oak allowed that the ultimate payout probably exceeded the $22,500 amount, they used that amount along with the publicly available sales figures for the 2K game and came up with $819,500 as compensation for prior infringements, and offered a perpetual license for all future uses of the specified tattoos of $1,144,000. They noted that most of the athlete’s careers will surpass four additional years as represented by the license fee.
Alternative theories and trademark defenses
Some writers have posed different solutions to the tattoo licensing situation, including defending on the fair use theory that some of the tattoos in the games are not always visible, or are a very small or “de minimis” part of the games. That of course does not hold water with some of the tattoos on the NBA players in the games which are not only prominently featured in the game but are used in its cover art and advertising. This defense ties in with another which assumes an implied license from the artist to the bearer of the tattoo, which would allow a sublicense to third parties to show the players’ tattoos in any commercial depictions of him or her. However, under copyright law implied licenses are disfavored; the burden of proof is on the defendant to prove the existence of a license by a preponderance of the evidence.
Others have seen the issue as one of personal freedom, with the person bearing the tattoo having the right to publicly display the tattoo, even in commercial settings for athletes and celebrities. This argument is similar to the “nominative use” defense in trademark law, which allows the natural portrayal of trademarks and logos seen and referred to in real life situations. For example, under the nominative use theory, Lebron James can appear in a film as himself with his real tattoos visible, since they are part of the “landscape” of him and of the movie. However, it would not be nominative use if Lebron James’ tattoos were focused on in the film and prominently displayed in the trailer and advertising for the movie. That would imply an association with the tattoo artist as having a connection with the film, which would help market and advertise the film, even though the artist is not connected to the movie and may not want his or her designs used in that movie. However it is clear the defense does not quite fit here, as usually it is a prominent company’s logo which has been wrongfully co-opted by the moviemakers to bolster sales of the film by association with that company. Unless a tattoo artist is famous worldwide and his or her designs well known, there is little value (or harm) in associating a movie (or game) with that artist. On the other hand, the association with the game implies that the tattoo artists or their representatives have agreed to their tattoo designs being in the game, and are being paid for them, which they are not.
Public policy argument
Other writers want to amend the Copyright Act to deny tattoo artists copyright protection for their designs by changing the definition of “copies” to exclude the human body. They argue there is a “public policy” that would prevent the potential for intrusion on the human rights of the tattoo artist’s clients by giving the artist some control over what is done with the tattoo once it is on the client’s body. The vague notion that tattoos are becoming so ubiquitous in today’s society that it would be difficult to control the use of them, and therefore the artist creating them should not be paid for reproductions of that art (while on a body) in some other medium is weak at best. Singling out this type of art may violate the tattoo artists’ constitutional right to obtain copyright protection for their creations which are legitimately protectable.
Athlete unions involved
The NFL Players Association is the only athlete union so far to address this tattoo situation by encouraging players to get an assignment, release or waiver from the tattoo artist agreeing to indemnify the game maker against third party claims before they would be allowed to have their tattoos depicted on merchandise. Several NFL players have done just that and relieved the makers of games they are depicted in from paying for the use of their tattoos. Colin Kaepernick got permission from the two artists who inked his tattoos to use them in the video game “Madden 15” released by Electronic Arts. The combination of the popularity of video games featuring professional athletes as they appear in actual games and the number of athletes with tattoos makes the issue of releases and waivers a real concern for both athletes and game makers.
Enhancement of the games
As mentioned before, the reason athletes’ tattoos are so valuable to video game developers is that they make the games as realistic as possible. They are seen as an important feature of the games, partially responsible for the increase in the games’ popularity and sales. The artwork provided by the tattooists is obviously a subject of negotiation for the game makers, as they make more money from the realistically enhanced depictions of the players. It is not an acceptable excuse that it would be too difficult for these game developers to get waivers from all athletes involved or a license from all the tattoo artists. You have to spend money to make money, as all filmmakers who have to pay for the music and artworks depicted in their movies know. Similarly, as the game makers’ revenue is enhanced by realistic depictions of tattoo art, the copyright owner artists responsible for their increased revenue should also share in the wealth.
©2016 Mary Ellen Tomazic
 Complaint for Copyright Infringement, Solid Oak Sketches, LLC v. Visual Concepts LLC, 2K Games Inc., Take Two Interactive Software, United States District Court, Southern District of New York, No. 16-00724.
 Id., § 102(a) (5). “… the requisite level of creativity is extremely low; even a slight amount will suffice.” Feist Publications, Inc. v. Rural Telephone Service Co., Inc., U.S.Kan.1991, 111 S.Ct. 1282, 499 U.S. 340, 113 L.Ed.2d 358, 18 U.S.P.Q.2d 1275.
 Id., § 101.
 Tattoo Art v. TAT International LLC, 498 Fed.Appx. 341 (C.A. Va., 2012).
 17 U.S.C. § 106(5).
 “Who Owns Your Tattoo? By Marisa Kakoulas, Inked Magazine, March 9, 2012, available at http://www.inkedmag.com/articles/who-owns-your-tattoo/.
 “NBA 2K16 Breaks Records With 4 Million Copies Shipped in Under One Week,” GameSpot.com, Oct. 2, 2015,
 “NBA 2K16: Breaking Down Best New Features for This Year’s Game,” BleacherReport.com, Aug. 31, 2015,
 Id., fn. 1
 17 U.S.C. § 501. § 504.
 Id. at § 505.
 Complaint for Copyright Infringement, Solid Oak Sketches, LLC v. Visual Concepts LLC, 2K Games Inc., Take Two Interactive Software, United States District Court, Southern District of New York, No. 16-00724. Confidential Settlement Communication.
 3 Melville B. Nimmer and David Nimmer, Nimmer on Copyright §10.03[A]  and §12.11(D) (2006).
 15 U.S.C. § 1125. See, New Kids on the Block v. News America Pub., Inc., 971 F.2d 302, 308 (9th Cir.1992).
 “NBA 2K16: Breaking Down Best New Features for This Year’s Game,” BleacherReport.com, Aug. 31, 2015,