Video Game Developers May Need to Think Before They Ink

Alexander Kuzovlev – Man with a backpiece Christian and Enlightenment tattoo (2015)¹

Tattoos have become extremely popular over the years, especially among professional athletes. Some of the biggest names in football, basketball, and soccer — Dak Prescott, Lebron James, and Lionel Messi — sport unique body art, a feature which has carried over into depictions of their likeness in the world of video games. Whether copyright protection exists for those reproductions is a question before the Southern District of New York in the case of Solid Oak Sketches, LLC v. Visual Concepts, LLC.²

In Solid Oak — a case involving the tattoos of professional basketball players which are digitally reproduced on their depictions in the video game NBA 2K16 — the plaintiff allegedly obtained a license for the rights to several players’ tattoos, but claims copyright infringement because it never gave the game’s publishers the right to reproduce those images.³ Defendant Take-Two Interactive argues that the players’ tattoos are de minimis because they are small and only visible when few players are selected from over 400 available players in the game.⁴ Another argument the defendant raised is that reproduction of the tattoos was allowed under a fair use analysis.⁵ The defendants contend that reproduction of the tattoos did not attribute to the defendants’ profits for the game, the reproduction was for accuracy, it was reasonable, and it did not harm any markets associated with the tattoos.⁶

The eventual decision in Solid Oak not only has implications on the reproduction of tattoos in a video game, but may also shed light on broader questions of whether a human body can be considered a “tangible medium” under the Copyright Act, which David Nimmer (recognizing a tattoo itself as a protectable work of art) argued against in Whitmill v. Warner Bros. Entertainment Inc.⁷ Settled in 2011, that case involved the designer of Mike Tyson’s face tattoo, recreated on actor Ed Helms’ face in the movie The Hangover II, who sued the movie studio for copyright infringement.⁸ Other scholars have proposed that concerns over the implications of involuntary servitude by providing copyright protection to an author in another person’s body, as well as the human body’s “necessity for human survival,” require rejection of the human body as an acceptable tangible medium in which portrayal of a work of art can receive copyright protection.⁹ Settlements in Whitmill and other predecessors to Solid Oak have left many legal questions unanswered, which has made some gaming companies like EA Sports take precautions by requiring featured athletes to get permission to use their tattoo artists’ designs.¹⁰ 

Though arguments were not presented against the idea that the tattoo artists had a valid copyright in their designs, the Solid Oak court may look at proposed tangible medium arguments and decide that ruling for the plaintiff would create too many problems with privacy concerns and treatment of the human body as property- particularly if the court is persuaded by the defendant’s fair use and de minimis arguments.¹¹ Those concerns will also be balanced with the rights of artists in their original works and their incentive to continue their creative efforts.¹² The court may also look at the significance of the effects of its ruling in other mediums such as film and television.¹³ However, would tattoo artists be reluctant to create innovative designs for athletes, whom may profit from using their tattoos as part of their distinct image and persona, if an inaccurate display of an athlete’s body in, for example, merchandise (action figures, bobble heads, and posters/photographic calendars) will affect the artist’s ability to generate income?¹⁴ With money at stake, tattoo artists may look at proposed solutions such as a “work for hire” agreement as a viable option.¹⁵

Like a tattoo, the ramifications of the court’s decision in Solid Oak  could be permanent, but settlement would continue to leave these and other important questions open to interpretation.¹⁶