NBA 2K’s real tattoos are taking it to a different kind of court

With increasing frequency, video games are depicting tattoos that very closely resemble those inked on the bodies of prominent professional athletes.  While many would assume these tattoos belong exclusively to the wearer, the legal reality is that their depiction in video games might be illegal because tattoo artists can copyright the designs that they ink.  Exactly how far copyright protection for these tattoos extends has yet to be decided by a U.S. court, but a recent lawsuit against the developers of the NBA 2K video games, Take-Two Interactive, might provide guidance to tattoo artists, video game developers, and athletes.

NBA 2K’s tattoos and the question of ownership

Solid Oak Sketches is suing Take-Two Interactive, alleging copyright infringement for unauthorized use of Solid Oak’s tattoos as they appear on a host of NBA all-stars, including LeBron James, Stephen Curry, and DeAndre Jordan. (Solid Oak Sketches, LLC v. Visual Concepts, LLC et al, Case No. 1:16-cv-00724). The original tattoo artists have signed copyright licensing agreements with Solid Oak, which grant intellectual property rights under copyright law to Solid Oak as if they were the original artists. The dispute centers on whether Solid Oak’s tattoos are copyrightable and if so, whether Take-Two’s reproductions of the tattoos violate copyright law.

Copyright protection is available for original works of authorship fixed in any tangible medium of expression. Original tattoo designs like Solid Oak’s clearly meet the originality requirement, but its disputed whether skin on a human body is an expressive medium which qualifies as a canvas for a copyrighted work. Whether tattoos are copyrightable is especially important for video game developers as only a copyright holder possesses the right to display his marks.

Absent an agreement between an athlete and tattoo artist assigning rights to the design, the artist retains the rights to the tattoo. Individuals upon whom tattoos are inked are not the copyright holders, but rather the “tangible medium” on which the tattoo artist’s ideas are fixed. In this case, Solid Oak has the rights to the designs because it entered into licensing agreements with the tattoo artists, not the athletes. Assuming Solid Oak’s tattoos are indeed copyrightable, the burden shifts to Take-Two to show that their reproductions did not violate these copyrights.

Solid Oak alleges they offered to license the tattoos for use in the games but that Take-Two ultimately broke off negotiations. Despite this apparent disregard for Solid Oak’s intellectual property rights, Take-Two argues that their depictions of the tattoos constituted fair use or de minimis use, common defenses to copyright infringement. Take-Two alleges that since they reproduced the tattoos for the purpose of authenticity and they rarely appear in the video game without pausing and zooming in (since they’re only displayed on a handful of the 400+ NBA players in the game), they did not infringe Solid Oak’s copyrights.

A recent case on this issue involved THQ’s UFC Undisputed 3 which sold 4.1 million units and prominently displayed an independently designed lion tattoo over the rib cage of UFC champion Carlos Condit. The tattoo artist, Christopher Escobedo, was awarded $22,500 in bankruptcy court after THQ filed for bankruptcy, but appealed the award and ultimately reached an out of court settlement before the court expressed an opinion on his copyright claims. It’s expected that the dispute between Take-Two and Solid Oak will reach the same outcome, despite evidence of Take-Two’s apparent willful disregard for and violation of Solid Oak’s tattoo intellectual property ownership. Assuming the parties reach a settlement before the court can hold on Solid Oak’s copyright claims, video game developers will be left without a clear solution.

Solutions for video game developers

Some video game developers have proposed that they should buy tattoo licenses from the artists. While solving copyright issues, this approach might prove financially burdensome as developers already contract with sports leagues and players’ unions to use players’ likenesses. If video game developers are expected to also pay for secondary tattoo licenses, will companies using athlete likenesses for endorsements or film and television appearances be expected to secure these licenses as well? Would other unique aspects of an athlete’s likeness and performance require a separate license?

A second potential solution is for video game developers to require athletes or players unions to secure tattoo licenses before the tattoos are reproduced in-game. Electronic Arts has recently taken this approach with its Madden franchise. Sports game developers are concerned about this approach however, since it might detract from the authenticity or realism of the games. Given that every player would not be able to secure a license from their individual tattoo artists, many inked players would not have their tattoos represented in-game.

What to expect

At a minimum, video game developers should check with athletes about any tattoo licensing agreements that might exist before including tattoos in-game (this would be far less burdensome in sports, such as basketball, with fewer players). Further, sports leagues and their affiliated players associations may find it prudent to advise players to secure releases from their tattoo artists to avoid legal liability, as the NFLPA has done with its players. Regardless, until a court expresses an opinion on the legality of reproducing copyrighted tattoos in video games, expect video game developers to continue to use trademarked tattoos in games to most realistically depict sports figures and other celebrities.

Aaron Swerdlow is an attorney at Gerard Fox Law, where he represents sports, corporate, and emerging technology entities.

Uriah Tagle is a third-year law student at UCLA School of Law where he serves as Co-President of the Sports Law Federation.