Whose Tattoos? Body Art and Copyright (Part I)

March 16, 2016

By Samantha Elie*

About a year ago my father got a tattoo. This man, who responded to my first tattoo by informing me that I had to cover it up for interviews and work, picked a design and got some ink of his own. But this move was not out of line with current trends: approximately one in five Americans has at least one tattoo, with the ratio rising to one in three for millennials aged 18-25. As tattoos continue to gain popularity and, more importantly, acceptance among mainstream Americans, the very culture of tattoos has altered. In a striking parallel to graffiti or street art, the counter-culture of tattoos at one time associated with rebellion, subversion and anti-consumerism has come to be considered an art form, with images being shown at Galleries in tattoo exhibitions. Yet, tattoos and, more generally “body art,” have not been able to fully integrate into the respectable art world’s business model. The very nature of imprinting a person provides no secondary market and no real way to display the works without the invasion of a person’s autonomy. The artist creates a work and then the work walks out into the world without him, at the mercy of the purchaser. When the customer happens to be a famous athlete or an artist, the tattoo could end up being featured in countless broadcasts, endorsements and films.

Tattoo artists are seeing their works being used as a comedic feature in a movie or as a way to sell video games, all without receiving any credit or recognition. In the past ten years, a handful of tattoo artists have begun asserting their rights, only to discover that the legal field has never officially defined to which rights tattoo artists are entitled. Starting in 2005 when artist Matthew Reed sued Nike over a commercial featuring a tattoo he created on NBA star Rasheed Wallace’s arm, a handful of artists have filed complaints for copyright infringement. Reed v. Nike, No. CV 05 198 (D. Or. 2005), 2005 WL 1182840. Yet all of these claims have settled out of court. Most famously, in Whitmill v. Warner Bros. Entm’t Inc., No. 4:11-CV-752, 2011 WL 2038147 (Apr. 25, 2011), Mike Tyson’s tattoo artist sued for a preliminary injunction when Tyson’s distinctive tribal facial tattoo was recreated on Ed Helms’ character in the movie The Hangover II. It is important to note that Whitmill did not object to Mike Tyson (and thereby his tattoo) appearing in The Hangover. Nor did he object to Tyson’s face appearing in countless broadcast fights, or even in the form of an action figure, but only opposed his work being displayed on another person in a film for profit. While Warner Brothers and Whitmill settled out of court, providing few answers and little guidance for the future, prior to settlement, the judge claimed “of course tattoos can be copyrighted. I don’t think there is any reasonable dispute about that.” This quote has become the basis on which Solid Oak Sketches is suing the makers of the video game NBA 2K16 for their use of NBA players tattoos in their upcoming game.

On February 1, 2016, Solid Oak Sketches, LLC filed suit in NY Federal Court against Visual Concepts, 2K Games, and Take-Two Interactive Software. Complaint, Solid Oak Sketches, LLC v. Visual Concepts, LLC et al, No. 1:16-cv-00724, (Feb. 1, 2016).  Solid Oak Sketches is a firm that licenses the work of tattoo artists, including eight works that are featured in the video game NBA2K16, which was released in October 2015. One of these works, “Lion’s Head Tattoo Artwork” which is featured on Cleveland Cavaliers star LeBron James’ arm, is at the heart of this dispute. LeBron isn’t particularly camera shy, appearing as himself in countless baskeball games, press releases, award shows, talk shows, commercials, and even playing himself in Amy Shumer’s 2015 movie Trainwreck. So what makes this video game different? Similarly to The Hangover case, the use in the video game just feels more exploitive. The artist is not claiming rights over LeBron himself, but over the commercialization of his work. Until mid-February 2016, NBA 2K16 advertisements and analyses emphasized the realistic graphics and the ability to customize your players with real NBA tattoos. A video on Bleacher Report, which has been taken down, emphatically explained that players could customize their NBA avatars by choosing from a selection of tattoos, picking which NBA star would sport the ink, where on his body it would be located, the size and even rotation of the tattoo selected. Players were encouraged to mix and match, using their little NBA players as a canvas.  This suit is thus still distinguishing between claiming carte blanche ownership over a piece, which would “render a person ‘a virtual slave’ to the artist” as leading copyright scholar David Nimmer and others fear, from seeking due credit when an artist’s work is recreated on another.

Copyrightability?

Before anyone jumps on whether or not NBA2K16 infringed Solid Oak Sketches’ copyrights, are tattoos even copyrightable? In the same way that tattoos do not fit squarely into the art world’s business model, tattoos do not fit squarely into copyright law. Under the Copyright Act of 1976, to receive protection a work must be original and fixed in a tangible medium of expression. 17 U.S.C. § 101 (2010). Tattoos are “sufficiently permanent” to meet the fixation requirement, and skin has already been deemed a tangible medium of expression. See Carell v. Shubert Org., 104 F. Supp.2d 236 (S.D.N.Y. 2000) (granting copyright to a makeup artist’s facial design). As long as the tattoo in question is sufficiently original, there does not appear to be a statutory reason for denying copyrightability for a tattoo as a pictorial, graphic, or sculptural work under § 102(a)(5) of the Copyright Act.

But the decision to deny copyright protection may be policy based. The fear is that unless rights are carefully and clearly defined, an artist claiming full and robust protection may hold too much power over their customers. This could entitle the artist to control his customer’s image entirely, forcing athletes to wear extra clothing to the potential detriment of their performance, or risk having to pay-up every time a game is aired and a shoulder is left bare. However, these fears seem unfounded in the reality of tattoo culture. Artists have not flooded the courts with infringement suits despite the amount of celebrities with tattoos appearing across the media spectrum. The lawsuits that have emerged merely request recognition when tattoos appear in an exploitative manner: as the punchline to a multimillion dollar movie, as the selling point for a video game that sold 4 million copies in under one week. While it is important to clearly and carefully define the rights that tattoo artists hold, it is equally important to acknowledge that statutory rights to copyright protection should exist.

Defenses?

Some critics believe that even if tattoos are technically statutorily protected, the NBA2K16 case will be an air ball. While Fair Use will always be raised, the two more interesting defenses suggested are implied licenses and useful article. One possibility is that there exists an implied license between the artist and the customer. Despite not having a written agreement, an implied license allows the inked person some rights to the ink, but only to the extent that the inker would have allowed if there was a formal agreement. This would be a way to balance autonomy and individual freedom against tattoo artists rights. While this defense seems solid in protecting the NBA from infringement suits every time LeBron appears on television for games, it is much weaker when LeBron’s lion head appears on its own, independent from his body, and even weaker still when this unique tattoo appears on another NBA star’s avatar.

Similarly, the argument has been proposed that a tattoo is a useful article. If a tattoo is not separable (physically or conceptually) from the underlying “useful article” (read: the body) to which it’s attached, it’s not copyrightable. This allows people with tattoos to live their lives as they see fit, without being forever indebted to their former tattoo artists. And yet the NBA2K case, much like the Hangover II case, is opposing the idea of the tattoo appearing on its own or on another person. It seems unlikely that a tattoo can be a useful article inseparable from the underlying person when it appears on its own in a list of customizable features.

So what should everyone do in the meantime?

Perhaps the surest way to avoid copyright and other disputes stemming from unauthorized reproduction of tattoos is  to have the tattoo artist license the design or agree that the tattoo is a work for hire. These two options are would prevents any uncertainty. Licensing specifically is the method implemented by the NFL. After Whitmill v. Warner Bros. settled, the issue over ownership of tattoos became a “pressing issue,” and the league “advised agents to tell their players that when they get tattoos going forward they should get a release from the tattoo artist,” players were also encouraged to seek out former artists, if possible, and obtain releases. If the player fails to mitigate copyright claims and the artist sues, the player is required to indemnify the NFL Players Association and its associates. If getting a release isn’t appealing, the pain associated with the copyright infringement claim may be more lasting than that of getting inked.

Selected Sources:

• Complaint, Solid Oak Sketches, LLC v. Visual Concepts, LLC et al, No. 1:16-cv-00724, (Feb. 1, 2016).
• Mik Thobo-Carlsen, How Tattoos Went From Subculture to Pop Culture, Huffington Post (Oct. 27, 2014), http://www.huffingtonpost.com/mik-thobocarlsen/how-tattoos-went-from-sub_b_6053588.html.
• Katharine Schwab, Highbrow Ink, The Atlantic (Dec. 3, 2015), http://www.theatlantic.com/entertainment/archive/2015/12/tattoos-high-art/416769/.
• Kathryn Dachille, (Th)ink Again: Who Owns Your Tattoo Under Copyright Law?, Creative Arts Advocate (Feb. 2014), http://creativeartsadvocate.com/think-again-who-owns-your-tattoo-under-copyright-law/.
• John Paul McCarty, Skin in the Game: Tattoos, Copyright, and Professional Athletes, 4:1 Mississippi Sports Law Review 95 (2014).
• Eriq Gardner, ‘NBA2K’ Videogame Maker Sued for Copyright Infringement Over LeBron James’ Tattoos, Hollywood Reporter (Feb. 1, 2016), http://www.hollywoodreporter.com/thr-esq/nba-2k-videogame-maker-sued-861131.
• Darren Heitner, Questions Concerning Copyright of Athlete Tattoos Has Companies Scrambling, Forbes (Aug. 14, 2013), http://www.forbes.com/sites/darrenheitner/2013/08/14/questions-concerning-copyright-of-athlete-tattoos-has-companies-scrambling/#6cce6ac64cb5.
• IMDB, LeBron James http://www.imdb.com/name/nm1429908/?ref_=nv_sr_1 (last visited: March 7, 2016).
• “NBA 2K16: Breaking Down Best New Features for This Year’s Game,” BleacherReport.com (Aug. 31, 2015), http://bleacherreport.com/articles/2558410-nba-2k16-breaking-down-best-new-features-for-this-yearsgame.

*About the Author: Samantha Elie (JD Candidate 2017) is a legal intern with Center for Art Law and a student at the Benjamin N. Cardozo School of Law. She may be reached at selie@law.cardozo.yu.edu.

Disclaimer: This article is intended as general information, not legal advice, and is no substitute for seeking representation.