Last year, Take-Two Interactive, the parent company of 2K Sports, was sued in a New York federal court for the unauthorized reproduction of tattoo designs featured on the bodies of players in the popular NBA 2K video game series. The plaintiff, Solid Oak Sketches, alleged that it owned copyrights on several tattoo designs on the bodies of LeBron James, Kobe Bryant, Kenyon Martin, DeAndre Jordan, and Eric Bledsoe, and, in an era increasing video game realism, 2K infringed on its rights in creating the players’ likeness. Solid Oak sought damages in excess of $1 million.
According to reports, 2k recently scored the dismissal of a huge chunk of the plaintiff’s claims. Judge Laura Taylor Swain dismissed the plaintiff’s claim for statutory damages under U.S. Copyright law on the grounds that the first of the series of infringements occurred before the works in question were registered with the U.S. Copyright Office. The tattoo designs were apparently registered in 2015, some two years after the release of NBA 2K14. In lieu of statutory damages, the plaintiff can still seek actual damages related to lost income for the tattoos’ appearances.
While the ruling is significant in terms of damages (the plaintiff sought up to $150,000 per infringement), 2K was saved by the timing limitations of copyright law. The bigger legal issue still remains – who really owns a tattoo after it has, in fact, been tattooed onto a body? As fans of tattoos, we recognize that a tattoo is indeed a piece of art. The tattoo artist is an “artist” and the human body is his/her “canvas.” On the other hand, a tattoo differs from a traditional piece of art in one key area. The tattoo is placed onto a canvas that itself has legal rights. When a traditional artist creates a painting, he owns the canvas on which his design comes to life (until it is sold). Obviously, that is not the case with tattoos. While money is exchanged for the design and work, the tattoo artist never owns the human canvas.
In any event, we respect the tattoo artist’s right not to have his work ripped off. We could certainly argue that a tattoo artist should never replicate another artist’s work on an ethical, if not legal, basis. But, this is not the situation in the 2K case. 2K is creating a player’s likeness which necessarily includes tattoos, hairstyles, eyes, height, weight, et cetera. 2K is not seeking to make a profit off of the tattoos themselves any more than Nike is by placing an image of Lebron James on a t-shirt. The tattoos are a part of the player and necessarily come along with him. If Solid Oak prevails, conceivably every image of Lebron James, Kobe Bryant, et cetera on a t-shirt, poster, or basketball card is a case of copyright infringement.
The truth is that the tattoo designs are out in the public domain. Such is the case when one places a visible tattoo on a public figure whose career necessitates that his arms be exposed. Certainly, Solid Oak knew that its designs where going to be all over when it chose to tattoo the most popular basketball player on the planet.