Tattoos, Copyright Infringement, and Celebrities: Litigation Edition, Round Four

The copyright wars concerning celebrity tattoos escalated further on Monday, with the filing in New York federal district court of a complaint against the makers of the NBA2K video games.

Solid Oak Sketches, the plaintiff, owns by license eight artistic works depicted as tattoos on NBA players LeBron James, Kobe Bryant, Eric Bledsoe, DeAndre Jordan, and Kenyon Martin. According to the plaintiff, the tattoos are reproduced in the video games, and some are featured in cover art and advertisement for the games.

This is not the first litigation volley in the tattoo copyright wars. In 2005, a tattoo artist sued Nike and NBA player Rasheed Wallace over commercial advertising featuring Wallace’s tattoos. In 2011, a tattoo artist sued Warner Brothers when Mike Tyson’s famous face tattoo appeared on a character in trailers and posters advertising the movie The Hangover II. In 2012, a tattoo artist sued Electronic Arts and NFL player Ricky Williams when Williams’s tattoos appeared on the cover of EA Sports video games.

Despite these skirmishes, no court has confirmed that tattoos are copyrightable. Each of the cases above settled without a ruling. In one, though—the Hangover II case—the judge stated during a hearing in open court: “Of course tattoos can be copyrighted. I don’t think there’s a reasonable dispute about that.”

Even without such judicial confirmation, most commentators conclude that tattoos are copyrightable. The Copyright Act protects “original works of authorship fixed in any tangible medium of expression.” 17 U.S.C. § 102. Copyright law defines “works of authorship” to include “pictorial, graphic, or sculptural works,” 17 U.S.C. § 102(a)(5), and drawings such as tattoos undoubtedly qualify. The law further states that a work is “fixed” “when its embodiment … is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” 17 U.S.C. § 101. The consensus seems to be that inking a work on human skin satisfies the fixation requirement.

But some disagree, including David Nimmer. He is the author of the pre-eminent legal treatise on copyright, Nimmer on Copyright. (Nimmer has changed his mind here—he says after “intense consideration”—as his own treatise tacitly assumed that a tattoo on human flesh would qualify for copyright protection.) In the Hangover II case, he submitted a declaration that examined copyright law, remarked that “copyright protection for tattoos is unprecedented,” and concluded that the human body cannot constitute a protectable medium of expression. Among the reasons for his conclusion, Nimmer imagined the consequences of giving copyright protection to tattoos: a person could be prohibited from removing a tattoo; obtaining an adjacent or overlapping tattoo would violate the copyright owner’s right to prepare derivative works; appearing in photographs (or in public) would violate the owner’s right to display; appearing in live broadcasts would violate the owner’s performance right; appearing on film would violate the owner’s right to make copies. While some of this parade of horribles can be avoided by recognizing an implied license for the tattooed person, that doesn’t solve the problem for third-parties like broadcasters, movie studios, and video-game makers.

Defendants are not without defenses, though because of the settlements none have been tested: fair use, work made for hire, joint authorship, implied nonexclusive license. (For a comprehensive discussion of these defenses, and a proposal for a “better solution,” see Jennifer L. Commander, The Player, the Video Game, and the Tattoo Artist: Who Has the Most Skin in the Game?, 72 Wash. & Lee L. Rev. 1947 (2015).) Until the legal issues are settled, though, litigation will continue.

In the meantime, interested parties are seeking work-arounds or practicing avoidance. The Madden video game no longer depicts NFL players with tattoos; in 2015, quarterback Colin Kaepernick reportedly became the only player with a tattooed avatar in the game, but only after the rights were secured. Celebrities and other public figures are being advised to get waivers, licenses, or assignments from tattoo artists. (The NFL Players Association warned its members to do so during 2013 pre-season meetings.) Agents and managers also should be aware of this potential intellectual property problem in merchandising and endorsement deals. Anticipating the issue and getting proper advice could help avoid becoming the next battle in the war.