The dearth of clear judicial precedent on tattoo copyrights enforceability has left the legal profession and the entertainment industry searching for answers. The question arises: to whom does the copyright of a tattoo remain with; the tattoo artist or the individual who wears ink on their body? At this point, a perplexing dichotomy starts between the tattoo artists who own copyrights of their design versus the individual who has fundamental rights of freedom of profession and privacy.

This conundrum has troubled video game creators the most. As the gaming industry burgeons, creators need a punctilious image of the athletes to show in the gameplay. Advancement of technology has enabled creators to sculpt the image, so precisely that it leaves nothing unconsidered, not even a popped vein. From a commercial standpoint, the exploitation and portrayal of an athlete’s image are of utmost importance. This need for perfection often leads to the recreation of copyrighted tattoos in their products. Various suits have been brought by tattoo artists against videogame companies for infringement of copyrighted tattoos in their games without seeking permission or giving compensation.

The recent decision of the Southern District of New York, Solid Oak Sketches, L.L.C. v. 2K Games, Inc. and Take-Two Interactive Software, Inc., has dealt with various fascinating issues like: Is an individual a “joint author” of his tattoos? Was the contract “work made for hire”? Was there any “implied license” to use his tattoos? Can these copyright laws curtail his personal liberty and freedom of expression?

Take-Two and its subsidiary, 2K, gained massive popularity because of its NBA 2K basketball video game series. It is one of the most successful videogames on the market. The game depicts a lifelike image of various National Basketball Association (“NBA”) players, which includes their tattoos. Take-Two acquired the rights to use NBA players’ names, likeness from NBA for consideration of $1.1 Billion USD.

Solid Oak entered license agreements with artists who inked up three NBA players, claimed Take-Two had infringed their copyrights by publicly displaying their works of art (tattoos) in NBA 2K video games. Solid Oak sought to impose an obligation on Take-Two and NBA players to get authentic permission from them by paying license fees.

The court granted summary judgment on three grounds:

• De Minimis Use – The Court observed that the depiction of tattoo by Take-Two was De Minimis. The tattoos appear on only three players out of four hundred. Also, the tattoos are unidentifiable because of the quick movements of players in the video game.
• Implied License – The Court observed that players had the implied license to use their own likeness. As the artists knew that players would be appearing in public and distributing their likenesses through different media. Therefore, players allowed NBA and Take-Two to use their likeness, including their tattoos, through both direct and indirect licenses.
• Fair Use – The Court agreed that Take-Two fulfills all statutory fair use factors. The Court also opined that the nature of use was transformative, its use was different from the mere depiction of art on the skin, but instead to depict the likeness of players accurately.

It is pertinent to note that giving tattoos full protection under copyright can have several dire consequences. First of which will be the control of tattoo artists over their clients. In a situation where the artist is the sole author of the tattoo, he would be vested with “the exclusive rights to do and to authorize” under §106. This provision, especially in the matter of tattoos, raises public policy concerns as it could allow the artist to control his or her artwork, which will include the person on whom it is “fixed.” For example, in Whitmill’s case, if the tattoo artist is granted the sole right to “reproduce”, “prepare derivative works”, “distribute copies” and “display publically” the tattoo, then professional boxer Mike Tyson will not be able to appear in public without covering half his face. And if Tyson does not cooperate with the artist, he could be liable to pay monetary damages to the artist. For a person like him whose significant income is derived from public appearances , forcing him to forgo such appearances could impact his earnings.

Secondly, there is a conflict between the artist’s moral rights and the client’s autonomy. The Visual Artists Rights Act protects the moral rights of the author. It grants the right to “prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to the author’s honor or reputation.” If this protection is granted to a tattoo artist, then the client won’t have the autonomy to alter, modify, or destroy the tattoo without the artist’s permission. These VARA provisions can potentially impact numerous human rights of the client and will also be in direct violation of the Thirteenth Amendment’s Freedom of individual and autonomy.

These implications suggest that a lot of harm can be done if these tattoo artists were provided complete protection under copyright law.

Exercising the defense of implied license by tattoo recipients to publicly flaunt their tattoo is considered valid. But, it is silent on how far the commercial exploitation of the tattoo is valid. It is imperative to draw a line in between. In a similar case Escobedo v. T.H.Q., a tattoo artist filed a copyright infringement action against T.H.Q. The Court agreed with the arguments put forth by the plaintiff and ruled that the defendant has created an unauthorized reproduction of the work.

Another argument arises that if the artist solely designed the tattoo and recipient did not sign a “work for hire” agreement, then the owner of the copyright will be a tattoo artist. Therefore the recipient is not authorized to re-license the tattoo to other people.

Furthermore, Solid Oak can argue that NBA players are getting paid for the right to use their “likenesses” in the NBA 2K series because of the agreement between Take-Two and NBA. Through this agreement these players have the legal ability to license or transfer all the relevant rights. Here, those players don’t have the right to assign the tattoo’s rights, and thus the artist is entitled to get some royalty out of the player’s profits.

It has been several times held tattoos could be copyrighted. But as discussed above, tattoo artists should not be granted complete protection under copyright law. At the same time should not be completely ousted from their rights they also stand correct before the law. The possible remedy to solve this conundrum is expanding the definition of “work made for hire” under Section 101 of the Copyright Act. This would effectively make the client the owner and author of the tattoo. For this, the legislators must bring tattoos under the specific categories mentioned in the statute as work made for hire.

If the tattoo artists continue to be credited for their creations, there exists a huge public policy concern to protect the clients from the exploitation of their fundamental rights. The Southern District court also correctly resolved this issue by establishing an implied license. Although having little precedential weigh, this case will have a substantial persuasive value in future cases.

Ranjeet Soni is a fourth-year student at Dr. Ram Manohar Lohiya National Law University, Lucknow, India.

Rohit Shrivastava is a fourth-year student at the Institute of Law, Nirma University, Ahmedabad, India

Suggested citation: Ranjeet Soni and Rohit Shrivastava, The Public Policy Concerns with Tattoo Copyrights, JURIST – Student Commentary, June 1, 2020, https://www.jurist.org/commentary/2020/06/soni-shrivastava-public-policy-tattoos/

This article was prepared for publication by Brianna Bell, a JURIST Staff Editor. Please direct any questions or comments to her at commentary@jurist.org