Do Tattoo Reproductions in Video Games Require a License?

The reproduction of tattoos in connection with video games and other media has given rise to several disputes over the past few years. For example, in November 2012, when UFC fighter Carlos Condit was featured in UFC Unleashed 3, tattoo artist Chris Escobedo sued THQ, Inc., the game's makers. Ultimately, a bankruptcy court awarded Escobedo $22,500 for his claim but the parties then settled after Escobedo appealed the award. Soon after the Escobedo suit, Ricky Williams and Electronic Arts were sued by a tattoo artist over the cover art of the game NFL Street, which featured, among other things, the arm of Ricky Williams (including the tattoos adorned thereon). That case was quickly settled, and after the case, the NFL began advising players to obtain releases for their tattoos. And now there is a case pending which involves the digital reproduction, in the video game NBA2K, of tattoos as part of the digital reproduction of certain NBA players. 

No definitive case regarding the copyrightability of tattoos permanently fixed on the human body (as opposed to, for example, a design fixed somewhere else) exists as of right now. Having said that, under current copyright law you can readily make the case that they are copyrightable. Using a relatively straightforward analysis of federal copyright law, one would argue that tattoos satisfying the originality requirement would fall under the protected category of "pictorial, graphic and sculptural works." The requirement that the work be "fixed in any tangible medium of expression" would be satisfied by virtue of the fact that the tattoo is fixed on a human body. And at least one judge has commented that tattoos can be copyrighted - in the notorious case involving the movie, The Hangover 2, which featured actor Ed Helms with a reproduction of Mike Tyson's famous eye tattoo, the judge, prior to the settlement of the case, said in an open court session: "Of course tattoos can be copyrighted. I don't think there's any reasonable dispute about that."

However, noted copyright expert David Nimmer has raised issues regarding the concept of tattoos being subject to copyright protection. In the Hangover 2 lawsuit mentioned above, Nimmer, in a declaration, stated that live bodies should not constitute the requisite "medium of expression" required by the Copyright Act.  Nimmer also went on to highlight, among many other things, several consequences of recognizing copyright protection in the tattoo at issue in the case, including the possibility (1) that a court could order Tyson not to remove the tattoo if the tattoo, a "work of visual art," gains "recognized stature" under the Copyright Act; (2) that obtaining an adjacent or overlapping tattoo could constitute the creation of an unauthorized derivative work, thereby allowing a court to order laser removal of the tattoo; and (3) that magazine or television coverage of the tattoo could constitute unauthorized public display of the tattoo.  

There is a currently case pending in a U.S. District court that attempts to grapple with issues relating to copyright and tattoos. The case involves a copyright infringement claim arising out of the inclusion, in the video game NBA2K, of certain tattoos in the digital reproduction of NBA players who bear those same tattoos in real life. The plaintiff in the case is Solid Oak Sketches, a company that is asserting that it acquired rights in the tattoos at issue. The defendants are 2K Games, Inc., and Take-Two Interactive Software. Take-Two is a major video game developer and publisher that develops and publishes games through 2K and Rockstar Games. The lawsuit concerns the games NBA2K14, NBA2K15, and NBA2K16. 

Late last month, the judge in the case denied Take Two's motion to dismiss the case. The denial of Take-Two's motion does not mean that Take Two will not ultimately prevail on the theories asserted in its motion to dismiss, but it does mean that the case will proceed, at least for now. Take Two's motion to dismiss did not challenge the copyrightability of the tattoos and instead focused on two defenses: de minimis use and fair use.

The de minimis use concept relates to the concept of substantial similarity, which is a necessary element of copyright infringement. In order for substantial similarity to exist, the amount copied must be more than de minimis. The de minimis doctrine is where a court permits copying because the copying is so trivial. 

In the Order denying Take-Two's motion to dismiss, the judge, in regard to de minimis use, noted that the "visibility and prominence" of the tattoos are affected "by countless possible game permutations that are dependent on the individual players' choices."  The ruling said that while Take-Two had argued that the in-game display of the tattoos was brief and that the tattoos could only be observed "fleetingly", Solid Oak had rejected those arguments and argued that by using features within the game  - for example, the utilization of the game's adjustable camera - the observability could be "fairly significant." The court, in dismissing Take-Two's motion as to de minimis use, said that at this stage of the proceedings, there was no objective perspective on how the game's features could affect observability, and that the court would need extrinsic evidence in order to find in favor of Take-Two.  

In addition to de minimis use, Take-Two had also asserted that its use of the tattoos constituted fair use. If a use is fair use, there is no infringement. Fair use analysis is case-specific, and the Copyright Act sets forth four factors to consider in making a fair use determination: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. 

However, the court, said that, as was the case with the de minimis use analysis, it was too early to resolve the fair use issue. According to the court, "Because of the difficulties inherent in conducting a side-by-side comparison of the video game and the Tattoos, further evidence must be considered in connection with the fact-intensive question of the applicability of the fair use defense." 

So, for now, the case proceeds. 

I must admit, while copyright law would seem to support the copyrightability of tattoos permanently fixed on a human body, and while no one can deny the extraordinary talent of some tattoo artists, the idea that someone can have any kind of intellectual property rights in someone else's flesh, is, at a minimum, a consequential notion. I'd also add that Solid Oak is not a tattoo artist, but is, rather, a company that acquired rights and then sued Take-Two. One legal framework that could alleviate at least some of the issues with recognizing copyright in tattoos is an implied license (i.e., the tattoo artist retains the copyright but grants a license to the person who bears the tattoo), but then you still have issues of determining what the scope of that license is. In addition, as noted by Nimmer, there's no reason for tattoo artists to grant such a license, and tattoo artists could, in their contracts, disclaim such a license. In any event, given some of the disputes in this area (which extend beyond just use in video games), this is a subject that should, when applicable, be part of the discussion when analyzing and ascertaining what rights and clearances are required for the creation, distribution, and other use of content. 

4/19/18 Update: As of two days ago, a new lawsuit has been filed in this area. It concerns tattoos and the video game WWE 2K. 

NOTE: This article is presented for informational purposes and represents the author's personal opinion only. It does not constitute legal advice and no attorney-client relationship exists between the reader and the author. If you would like legal advice concerning this issue, you should speak with a qualified attorney who can evaluate the particulars of your matter.