Who Owns Your Body?
Over the past decade, video games have dramatically improved graphically that there has been an increased attention to detail in all aspects of the game. Players’ motions, celebrations, and even their tattoos are vividly depicted in the games in an attempt to make the games appear more real. Unfortunately for 2K Games and Take-Two Interactive, creators of the popular basketball video game NBA 2K, their game’s accuracy may have resulted in copyright infringement.1
A suit was recently commenced in New York against both 2K Games and Take-Two Interactive for infringing on a tattoo parlor’s copyrighted work without their permission.2 The plaintiffs, Solid Oak Sketches, allege that their artwork was copied on the bodies of notable athletes such as LeBron James, Kenyon Martin, DeAndre Jordan, and others.3
For copyright protection to be extended, there must be both originality and duration. Originality is an extremely low standard to be met, and the artist’s tattoo design is typically designed and printed on paper. Once copyright protection is granted, the owner of the copyright has the right to distribute the copyright, which includes selling it to consumers. While it might seem foreign to some that players are not considered the owners of the designs on their bodies, it is a well-established legal principle. The person owns the specific tattoo and the ink on his body, but in most cases, not the copyright of the original design.
This is not the first time a suit has been commenced over the infringed copyright of a tattoo creator. The tattoo parlor that created Mike Tyson’s iconic face tattoo, for example, sued Warner Brothers for imitating their work on actor Ed Helms’ face in The Hangover: Part II.4 Warner Brothers attempted to make a fair use argument, claiming that the tattoo was a parody of Mike Tyson’s tattoo. This argument was sharply rejected by Judge Catherine D. Perry who said “[t]his use of the tattoo did not comment on the artist’s work or have any critical bearing on the original composition. . . [t]here was no change to this tattoo or any parody of the tattoo itself.”5
Although the Warner Brother case ultimately settled out of court, it is clear that copyright protection for tattoo parlors should be taken into consideration moving forward. The National Football League Player’s Association, for example, has instructed players to receive written permission to display certain tattoos on television and in video games.6 This would most likely not have an impact on an average person, but it will be interesting to see moving forward how tattoo patrons and parlors react. In the case of the Take-Two Interactive and 2K Games, it appears that Solid Oak Sketches has a meritorious claim. Moving forward, video game developers will need to be progressively more vigilant that they are not unwitting violators of copyright.
Doug Bolton, NBA 2K16 developers sued by tattoo studio for using ‘copyrighted’ tattoos in the game, Independent (Feb. 3, 2016), http://www.independent.co.uk/life-style/gadgets-and-tech/gaming/nba-2k-basketball-game-2k16-tattoo-copyright-lawsuit-solid-oak-sketches-a6850686.html.↩
Solid Oak Sketches v. Visual Concepts, 2K Games, and Take Two Interactive, 1:16-cv-00724 (SDNY 2016).↩
Supra note 1.↩
Lauren Etter, Tattoo artists are asserting their copyright claims, ABA Journal (Jan. 1, 2014), http://www.abajournal.com/magazine/article/tattoo_artists_are_asserting_their_copyright_claims/.↩
Supra note 1.↩