Photo by FREDERIC J. BROWN/AFP/Getty Images.
LeBron James has three NBA championship rings, a house with a bowling alley, and sponsorship deals worth hundreds of millions of dollars. But does “King James” own the rights to the tattoos on his own skin?
That question is prompted by an ongoing copyright infringement lawsuit in New York, one of only a few suits to raise the legally murky issue of whether companies like movie and video game studios must pay to license the work of tattoo artists the way they would pay for using a pop song, even if that tattoo is permanently inked on a person’s body.
Solid Oak Sketches sued video game maker Take-Two Interactive in 2016 over the company’s profitable basketball game series “NBA 2K.” Solid Oak, a single-member LLC, previously purchased the exclusive rights to license, from the original tattoo artists, several tattoos found on basketball players James, Eric Bledsoe, and Kenyon Martin. In the suit, Solid Oak charges that Take-Two committed copyright infringement when it created digital versions of the players that included those tattoos without permission.
In court filings, Take-Two balked at the idea it must pay to license images that are permanently inked on the bodies of basketball players, celebrities whose tattoos frequently appear in advertisements and the pages of glossy magazines. Solid Oak’s argument would require public figures to “seek its permission every time they appear in public, film, or photographs,” according to Take-Two’s August motion, currently under review, for summary judgment in its favor.
In response, Solid Oak argued that the case should proceed to trial, and that it is only pursuing “corporate entities that purposefully seek to commercially benefit” from the tattoos without paying.
In this case, the bodies of the basketball stars were not photographed but rather recreated digitally from scratch in order to achieve a likeness to the real players. Like so much about copyright cases involving tattoos, what impact that will have on the judge’s analysis remains a question “without any clear answers,” said Andrew Gerber, a New York-based intellectual property attorney not involved in this case but who frequently represents artists.
The idea that tattoos are equivalent to songs or paintings might seem strange, but legally it’s relatively clear-cut. Copyright protection extends to any original work “fixed in a tangible medium of expression,” a definition that most intellectual property experts agree includes tattoos. But there is very little case law addressing the ability to copyright tattoos, since most infringement suits end in settlement.
“This video game company displayed copies of these artistic works without permission and therefore this is copyright infringement—period,” said Gerber. “The reason that sounds so crazy is because there are a lot of other things at play here.”
Top of that list: a human body. Tattoo artists know their clients are going to walk around in public and display the tattoos in photographs. Therefore, these tattoo artists arguably confer unwritten permission, or in legal terms, an “implied license” for these activities, the way buying a work of art confers the implied license to exhibit it. The scope of the license is a subject of debate but, said Gerber, whatever implied license exists ends once the tattoos are used for commercial purposes.
Indeed, research has found that it is the social norms of tattoo artists rather than legal barriers that have prevented widespread litigation. “Although tattoos fall squarely within the protections of the Copyright Act, copyright law plays virtually no part in the day-to-day operation of the tattoo industry,” wrote Case Western Reserve law professor Aaron Perzanowski in a major 2013 review of the industry. “Instead, tattooers rely on a set of informal social norms to structure creative production and mediate relationships within their industry.”
After all, what celebrity would want to get a tattoo from someone if that person is known to sue whenever that tattoo appears without a license?
Partly for that reason, tattoo cases are rarely brought, leaving enduring questions about how the location of tattoos on another living person complicates copyright analysis. In a 2011 case involving the unlicensed use of Mike Tyson’s iconic tattoo in the film The Hangover Part II, a California judge frowned on an argument advanced by copyright expert David Nimmer, who asserted that tattoos cannot be copyrighted. Among other rationales, Nimmer said that allowing artists to hold the copyrights to images appearing on human bodies amounted to slavery, and violated the 13th Amendment to the Constitution, a proposition the judge described as “silly.”
On the other hand, declaring tattoo copyrights unenforceable and allowing their unfettered commercial use would involving “swinging the pendulum too far in the other direction,” said Yolanda M. King, a law professor at Northern Illinois University who has written about tattoos and copyrights.
Indeed, courts can take a nuanced approach to the question, evaluating the context in which the tattoo appears and awarding pertinent damages, notes Perzanowski in his article. The NFL has been writing to players since 2012 warning them that they should procure licenses from their tattoo artists for future use.
Take-Two has so far avoided arguing that tattoos are not copyrightable and instead asserted that the presence of the tattoos in the video game is so small as to be legally meaningless. Furthermore, the company argues, the use of the tattoos qualifies as fair use. Solid Oak rejects the fair use argument, asserting that the Take-Two’s use of the tattoos for a commercial project is not transformative use of the original design, and has asked a judge to allow the case to proceed.
If this case does go to trial, some long-awaited clarity might emerge.