In a recent US judgment, the court addressed the tricky topic of copyright and tattoos. This is an area in which many uncertainties and questions arise. Are tattoos copyright works? If so, who owns that copyright? How does copyright impact the tattooed individual’s ability to publicise their likeness and express themselves freely?

The case in question, Solid Oak Sketches v 2K Games Inc. and Take-Two Interactive Software, Inc., involved the reproduction of tattoos on the bodies of NBA (National Basketball Association) players in a videogame. The matter first came to court in 2016, when Solid Oak Sketches, a tattoo company, claimed that 2K Games and Take-Two, the producers of the ‘NBA 2K’ videogame, had infringed its copyright in the tattoos. Solid Oak Sketches holds exclusive copyright licences, from the original tattoo artists, for each of the tattoos in question and has registered these rights in the US. After a series of complaints, motions and counterclaims in 2017 and 2018, the US District Court for the Southern District of New York granted the defendants’ motion for summary judgment on 26 March 2020, finding that the defendants’ use of the tattoos did not infringe the plaintiff’s copyrights.

Mike Tyson (2019) whose tattoo, created by artist S. Victor Whitmill, was reproduced in the Warner Bro’s film ‘The Hangover 2’ (Image Credit: Glenn Francis CC BY-SA 4.0 via Wikimedia Commons)

This is not the first time that the issue of copyright and tattoos has arisen. Perhaps the most well-known instance is the lawsuit surrounding Mike Tyson’s face tattoo and its reproduction in the Warner Bros’ film ‘The Hangover 2’. This case settled out of court nearly 10 years ago, giving little guidance on the legal implications of copyright in tattoos. Since then, in 2012, Christopher Escobedo sued THQ, a company which produces content for gaming systems, for copyright infringement after it reproduced Mr Escobedo’s ‘lion tattoo’, found on the body of athlete Carlos Condit, in an Ultimate Fighting Championship videogame. Again, full judgment was not given because THQ filed for bankruptcy. According to the Hollywood Reporter, the final sum awarded to Mr Escobedo was lower than that for which he argued. Therefore, the award appears to reflect the arguments of THQ’s debtors, reported in the same article, that a tattoo on another person’s body may not be protected by copyright and that, if it is, there is uncertainty over the value of a licence to use such a work and who has the right to grant such a licence.

What does the Solid Oak case add to our understanding of copyright and tattoos? For one thing, there was no ruling on whether copyright actually arises in these tattoos. Instead this appears to be assumed and accepted. Copyright subsists in “original works of authorship fixed in any tangible medium of expression” according to the US Copyright Act of 1976 (17 U.S.C. § 102). The tattoos at issue in this case were all produced through different processes. For example, one was copied from a picture, one was copied from the artist’s own design and one was copied from a pre-existing design not by the artist. Interestingly, although all of these methods involve some form of ‘copying’, the question of originality was not discussed in relation to the tattoos.

Assuming copyright subsisted in the tattoos, the judgment goes on to give guidance as to what would constitute an infringement. Firstly, the court found that the defendants’ (the video game producers’) use of the tattoos in this case was de minimis. To prove copyright infringement, the plaintiff must show that there is substantial similarity between the original and the reproduction. However, the videogame only used the tattoos on three players of the four hundred which are available in total. When they were displayed, the tattoos were small and indistinct. Neither were they used in any materials marketing the game. Therefore, the overall ‘observability’ of the tattoos in the game, a factor considered fundamental to determining the quantitative threshold for substantial similarity, was minimal. For this reason, the court held that no reasonable trier of fact could find that the tattoos used in the game were substantially similar to the tattoos licensed to the plaintiff.

Secondly, it was held that the players had an implied licence from the original tattoo artists, which pre-dated the licences granted to Solid Oak Sketches, to use the tattoos as part of their likenesses. From this, the defendants derived a right to include the tattoos in the likenesses which the players granted them permission to produce in the videogame.

LeBron James, one of the NBA Players with tattoos at issue in this case (Image Credit: Keith Allison CC BY-SA 2.0 via Wikimedia Commons)

Thirdly, this judgment gives guidance on the application of the fair use exception in this context. Fair use was counterclaimed by 2K Games and Take Two as a defence to the plaintiff’s infringement claim. Multiple factors are considered in determining whether a specified use is fair. Interestingly, one factor which influenced the court in this case was that the defendants’ use of the tattoos was for an entirely different purpose from the original tattoo. The former aimed to create a likeness, the latter was produced as a means of individual expression. It is likely that many circumstances in which tattoos are re-used will involve commercial exploitation through the creation of a likeness rather than an act of creative expression. Of course, the finding of fair use was not based on this factor alone. However, it is at least arguable that, in many situations, it would not be difficult to show a different purpose and thus assert fair use based on this reasoning.

Where are we now with tattoos and copyright? Principally, it seems that obtaining a licence for any potential future uses of your tattoo at the time of its creation would be sensible. Indeed, according to this Forbes article, the National Football League Players Association has advised agents and players to seek a release from tattoo artists. It is also clear that both the amount of the tattoo reproduced and the manner of the re-use will be relevant in determining whether infringement has occurred. Beyond the world of sports stars and videogames, issues involving tattoos and copyright law will continue to arise as the medium is increasingly used in novel ways. For example, a tattooed art work created by Wim Delvoye on the back of Tim Steiner, has been on display via live-stream at The Museum of Old and New Art in Hobart, Tasmania throughout April. In this case, the tattoo has actually been sold to a collector for €150,000 and, when the tattooed individual dies, his skin will become part of the collection. How copyright applies to such a unique situation is unclear. Until all these issues are tested more fully in court, the application of copyright law in the context of tattoos will remain a confusing area.