Who Owns Tattoos?

A recent lawsuit filed against the makers of the NBA2K series asks a question yet to be answered.

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Feb 9 2016, 3:18pm

Jason Getz-USA TODAY Sports

On February 1, Solid Oak Sketches, a small agency that represents tattoo artists, sued the makers of the popular video game series NBA2K for $1.1 million for digitally recreating the tattoos on the bodies of popular basketball players, including LeBron James and Kobe Bryant, without permission from the artists who inked them in the real world. The case features many unique and complicating factors, but in a broader sense poses a fundamental and increasingly important legal question that has yet to be resolved: who owns tattoos?

On the face of it, the answer seems obvious. Tattoo artists charge for their work, with a reasonable expectation that the art will be seen by others, according to Yolanda King, Associate Professor at Northern Illinois University College of Law and counsel at Advitam IP, an intellectual property law firm. For example, when Shawn Rome gives James a tattoo, he is giving James an implied license to display the tattoo in the arena, on television, and anywhere else a camera catches him. Rome owns the design, and James owns the right to display it on his body.

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But when that tattoo is on the body of a celebrity, and the design gets copied, re-created and sold for profit by third parties, the ownership issue becomes much thornier. NBA2K publicly touts its ultra-realistic graphics and player design, specifically singling out tattoo recreation as an element of that realism. It features specific NBA player tattoos prominently in promotional materials. However, the game's makers didn't get permission from the legal rights holder of those designs, Solid Oak Sketches. So the basic question before the Southern District of New York courts is this: is what NBA 2K does with tattoos any different than if the game's makers had used an unlicensed photograph to promote their product?

According to court documents, lawyers representing Solid Oak Sketches reached out to Take Two Interactive Software, the creators of the NBA2K series, in July to inform them of the copyright infringement. In the letter, the lawyers sought to settle the dispute "quietly and amicably," asking for compensation for the prior unlicensed uses of the tattoos and proposing to establish a license for future uses. They also offered to include a nondisclosure provision that would keep the settlement secret. For reasons that remain unclear, the settlement talks stalled, and Solid Oaks sued. (Representatives for Take Two Interactive did not reply to a request for comment.)

This may sound straightforward: Take Two infringed on a copyright and will have to pay damages or settle. In some ways, it is that simple. There is little debate that tattoos are copyrightable, argues King. They are clearly creative works that fall under the purview of intellectual property law, and it is also fairly clear that Take Two violated this copyright by re-creating the works in a digital medium and using them to promote and sell its own product without the artist's permission.

But, in other ways, it's not that simple. For one, the courts have never ruled on the copyrightability of tattoos, and there are some complicating factors; mainly, the little issue of the fact that the "medium" on which the art is expressed is another person's body. Copyrighting a book is fairly straightforward, because the copyrightable material is a physical thing you have produced. However, a tattoo can, by definition, only exist on another person's body. Surely the tattoo-bearer has agency and ownership over his or her own skin. How are the rights divided?

King argues that, by putting their art on someone else's body, this will lead to a "diminution of their exclusive rights," which basically means there would have to be some debate about how the rights are divided between the artist and the tattoo-bearer. But, it's clear the artist still retains some rights.

We don't have clear answers to this issue because few lawsuits have been filed regarding tattoo intellectual property rights. Part of the reason tattoo artists haven't sued in larger numbers, King explained, is related to the social norms of the tattoo industry, where design copying is often perceived as a form of flattery and publicity, especially if it's based off the design on a celebrity's body. "So they may not mind waiving [rights] because then it means more publicity with them, they keep a relationship with their high profile, client, which then brings them more clients."

The few lawsuits that have been filed were settled out of court for undisclosed sums. One of the earliest tattoo intellectual property cases was filed in 2005, when a tattoo artist sued Nike and Rasheed Wallace for the re-creation of his designs in a Nike commercial.

The artist argued this commercial constituted copyright infringement because the tattoo wasn't merely displayed on Wallace's body; it was digitally re-drawn and the commercial's main narrative. Nike settled before arguments could be heard.

In 2011, Victor Whitmill, the artist who created Mike Tyson's face tattoo, sued Warner Bros. for re-creating the tattoo on Ed Helms's face in The Hangover 2 and using the design on promotional materials, including an advertisement campaign with 7-Eleven. Attorney Michael Kahn—who represented Solid Oaks during the negotiations with Take Two, but does not have a license in the state of New York to file suit—represented Whitmill in The Hangover 2 case and filed a preliminary injunction to prevent the film's release until the matter was settled, which resulted in one of the only actual hearings on the issue of tattoo copyrights. Although the judge denied the motion to delay the film's release—in part because of the financial harm to theater owners—the judge did sound favorable to the artist's overall claim of copyright infringement, calling Warner Bros.' arguments that tattoos are not copyrightable "silly."

In the process, Warner Bros.' lawyers presented a remarkably dumb argument that the use of the tattoo was a parody of "men and their misadventures," which, they argued, would fall outside of IP claims:

"Well, sure. You have got this powerful figure, Mike Tyson, in the original film with the tattoo on his face. What does he do? He knocks someone out when he is angry at them. He is the epitome of male aggression. Instead, now you have this milk toast [sic] character with the same tattoo on his face. It's a real spoof on men and their misadventures."

The judge didn't buy it:

"Yeah, I get that. I thought you had to have something that was parodying or commenting on the actual copyrighted thing. They are not saying they have a copyright on men and their stupid behavior, and so how is this parody with regard to the tattoo?"

Not long after, Warner Bros. settled for an undisclosed sum. Kahn told me he wasn't sure how much influence the judge's statements had on bringing about the settlement. "We thought it helped push the parties toward settling the case, but I don't know what Warner Bros. thought."

Nevertheless, the judge's remarks proved influential, as they're some of the only indications about how a judge would rule on the copyrightability of tattoos. Some legal experts predicted a future tidal wave of similar lawsuits as tattoo artists become legally empowered to challenge brazen infringement, but, as King told me, "it's been more of a trickle."

The following year, tattoo artist Stephen Allen sued video game maker Electronic Arts and former NFL running back Ricky Williams over tattoos Allen inked, which were adapted and displayed on NFL Street, Madden NFL 10, and Madden NFL 11. The parties settled the case four months later. However, the suit scared the NFL Players Association enough that they began advising their players to obtain waivers from their tattoo artists, which Colin Kaepernick did prior to being prominently featured in Madden.

Still, as anyone familiar with IP and the internet knows, enforcing IP law is a completely separate conversation from the law itself. In cases involving major studio films and video games where so much money is on the line, there is very little incentive for Warner Bros. or Take Two Interactive to break from the current practice of stealing the designs and hoping for the best. As such, King thinks the companies are making the rational financial choice, if not the legally sound one.

"Is it really worth it to set a precedent of paying artists beforehand and then that becomes your practice of paying for use?" she said. "Or would you rather take a risk and see if the lawsuit is actually filed and then settle it and pay a nominal amount compared to the millions you'll make for the game? Probably the latter."