Last year, Solid Oak Sketches LLC (“Solid Oak”) sued video game maker Take-Two Interactive (“Take-Two”) over the use of Solid Oak’s copyrighted tattoos on the bodies of various NBA players that appear in Take-Two’s popular “NBA 2K” video game franchise. Recently, Take-Two filed a motion for summary judgment in federal court asserting that the appearance of the tattoos in “NBA 2K” video games is protected by the fair use and de minimus use doctrines.
Solid Oak evidently purchased the rights to specific designs that have been etched on superstar NBA basketball players such as LeBron James and Kobe Bryant from tattoo artists who inked these stars and others. As such, Solid Oak has alleged that Take-Two is infringing on its copyrights by depicting the NBA players’ tattoo designs in its “NBA 2K” video games. However, Take-Two has argued that Solid Oak’s claim essentially requires the NBA players who have copyrighted tattoo images on their bodies to obtain permission from copyright owners every time they appear in public, film, television, or photographs and that third parties who create new works depicting the athletes with their tattoos without permission must pay damages.
The primary interest in this case by the legal community is that it seeks to finally address the question whether a tattoo artist (or in this case, someone who purchases rights to a tattoo design) can claim a copyright on a design he or she has etched on another person’s body, thereby controlling the use or depiction of that person’s body, which David Nimmer (author of “Nimmer on Copyright”) warns would render a person a “virtual slave” to the tattoo artist.
Many legal observers believe this case is likely not going to go in Solid Oak’s favor for a number of reasons. Copyright law has never been interpreted to provide tattoo artists with such a right, and if they were to be granted such a right, it would obstruct copyright law’s purpose of encouraging the creation of new works (an argument Take-Two has made in its motion for summary judgment).
Furthermore, the depiction of the small number of Solid Oak tattoos in “NBA 2K” are only displayed and viewable when a few specific players with the tattoos are selected by game users; and with over 400 NBA players being available to use in the game, there is minimal use. Take-Two has indeed argued that the use of the tattoos is protected by the de minimis copyright doctrine, which denotes that the use is so diminutive that it does not infringe.
The other copyright doctrine of fair use may also protect Take-Two’s reproduction of the tattoos. Take-Two has argued that it is not a rival tattooist that is replicating designs and inking them on persons; rather, its use is part of a highly creative video game that presents game users with a virtual world and only uses the player tattoos to realistically depict NBA players.
It almost seems like this sort of lawsuit was inevitable. Copyright owners frequently try to expand the value and scope of their works, and with tattoo art becoming so prevalent in pop culture and entertainment, it was just a matter of time. Once the New York federal court rules on Take-Two’s motion for summary judgment, there may finally be a judicial decision specifically addressing this unique issue. If Solid Oak defeats summary judgment and is allowed to proceed with its legal challenge against Take-Two, it will be very interesting to see how the courts ultimately address whether tattoo artists and tattoo copyright owners have the expansive power to control certain uses on another person’s body.