Who owns your tattoo?
March 28, 2020 10:19 AM   Subscribe

NBA 2K Beats Copyright Case Over LeBron's Tattoos (Law360 paywall): A Manhattan federal judge ruled Thursday that Take-Two Interactive couldn't be sued for copyright infringement over tattoos on LeBron James and others in the NBA 2K video games, saying tattoo artists gave the players automatic licenses when they inked their bodies: "The undisputed factual record clearly supports the reasonable inference that the tattooists necessarily granted the Players nonexclusive licenses to use the Tattoos as part of their likenesses." Related: Who Owns Your Tattoo? Tattoo Artists Answer (Youtube)

'NBA 2K' Publisher Beats Copyright Suit Over LeBron James' Tattoos (Hollywood Reporter):
Solid Oak Sketches, which claimed to own copyrights to tattoo designs featured on the bodies of NBA stars LeBron James, Kenyon Martin and Eric Bledsoe, filed its lawsuit back in early 2016. The plaintiff targeted video game publisher Take-Two Interactive over allegedly unauthorized reproductions of those tattoo designs in the NBA 2K franchise. [...] Take-Two has just beaten the lawsuit -- and won big enough to potentially resolve questions that have been circulating in legal circles ever since one tattoo artist once sued and settled with Warner Bros. over The Hangover Part II over a reproduction of Mike Tyson's face tattoo. In fact, Thursday's opinion comes just a week after a judge in a separate case refused to end a tattoo copyright lawsuit against WWE.
[...] Swain writes that all the factors governing analysis of fair use tip towards the defendant. With regards to the purpose and character of use, for example, she writes, "Here, the undisputed evidence demonstrates that Defendants’ use of the Tattoos is transformative. First, while NBA 2K features exact copies of the Tattoo designs, its purpose in displaying the Tattoos is entirely different from the purpose for which the Tattoos were originally created. The Tattoos were originally created as a means for the Players to express themselves through body art. Defendants reproduced the Tattoos in the video game in order to most accurately depict the Players, and the particulars of the Tattoos are not observable. The uncontroverted evidence thus shows that the Tattoos were included in NBA 2K for a purpose — general recognizability of game figures as depictions of the Players — different than that for which they were originally created."
Solid Oak Sketches v 2K Games Memorandum Opinion and Order (Document Cloud)

Previously: Is Mike Tyson's Face Open Source?
posted by not_the_water (24 comments total) 11 users marked this as a favorite
 
The main article is paywalled. Any alternatives?
posted by Ickster at 10:22 AM on March 28, 2020


Goddamn. If someone who gets a tattoo doesn't own the image of their body with the tattoo on it, then what does anyone own? It's not like customers are canvases, no matter how the artists may feel about it.
posted by grumpybear69 at 10:49 AM on March 28, 2020 [21 favorites]


Here is a nonpaywalled Hollywood Reporter article. Those who don't like DocumentCloud's bells and whistles might find the direct PDF link to the opinion useful.

It's good that the court came to the right conclusion, but it's testament to how extreme the overreach in IP law has gotten that this is even a question.
posted by Not A Thing at 10:58 AM on March 28, 2020 [4 favorites]


Everything is a “question” until it can decided by established case law.
posted by sideshow at 10:59 AM on March 28, 2020 [7 favorites]


I have a scar on my forehead from falling down a flight of stairs at age two that looks a lot like the Nike logo. I live in perpetual fear and store my money very tiny offshore accounts,
posted by Dumsnill at 11:08 AM on March 28, 2020 [24 favorites]


Defendants’ use of the Tattoos is transformative.

Huh, IANAL but the obvious argument I see is exactly the opposite: that since Take-Two did nothing specifically transformative or particular to the tattoos, that they are being treated not as an object in its own right (subject to intellectual property protections), but as a feature of individuals (LeBron James and others) who have approved the use of their likeness (said likeness including tattoos).

If you could, for instance, paste tattoos onto characters, putting LeBron's tattoos on Kenyon, or whatever, that would be equally (or even more) transformative of the original IP, but a less defensible use of them, because they're being treated as art-pieces in their own rights rather than as features of a specific likeness.
posted by jackbishop at 11:23 AM on March 28, 2020 [5 favorites]


Those tattoo artists are arguing that plastic surgeons can copyright the shape of a patient's nose.
posted by Wetterschneider at 12:26 PM on March 28, 2020 [4 favorites]


Brings a whole new meaning to "Got your nose!"
posted by Faint of Butt at 1:16 PM on March 28, 2020 [8 favorites]


What seems odd to me (not a lawyer) is that a tattoo would seem to me to clearly be work for hire, and the tattooer wouldn't hold copyright in it.
posted by Lexica at 1:30 PM on March 28, 2020 [12 favorites]


My reading of the ruling is that what Take Two did IS transformative because they aren't looking to tattoo these images on another person, but to make a video game character that looks like a person who happens to have those tattoos on their body. If I took a photograph of someone's living room, and they happened to have another photo hanging on the wall, do I have to license the rights to that framed photo? Or is transformative because I'm not reproducing the photo itself, but an image of the room where the photo hangs?

I'm curious if this opens up another vector of transformative reproduction of the whole instead of a part. Nike won't let you just put a pair of Air Force 1s into a video game without paying them, but if there's a person out there who literally wears AF1s every single day, and you license their likeness, does the fact they wear Nikes count as part of the likeness now?
posted by thecjm at 1:31 PM on March 28, 2020 [3 favorites]


The opinion is a complete curbstomp of the plaintiffs, so it's a fun read if you enjoy that kind of thing (which I do). The court's argument on transformative use is basically what thecjm outlined.

The decision makes at least three legal conclusions (implied license, de minimis usage, fair use) any of which on its own would (if I'm reading it correctly) have been sufficient to deny the plaintiff's claims, and the fair use argument is pretty crushing and denies basically *any* of the elements on which the plaintiff could have claimed non-existence of fair use.
posted by phoenixy at 2:59 PM on March 28, 2020 [3 favorites]


Reading through the WWE suit, I find it interesting that WWE offered the plantiff a payment of $450. Does anyone know if they pulled that number out of [the air] or if that's a standard licensing fee?
posted by dances with hamsters at 4:36 PM on March 28, 2020 [1 favorite]


What seems odd to me (not a lawyer) is that a tattoo would seem to me to clearly be work for hire, and the tattooer wouldn't hold copyright in it.

If I'm reading this from the copyright office correctly, it's not a work for hire unless, at a minimum, it is specifically stated to be a work for hire in writing (or you own the tattoo parlor.)
posted by mark k at 4:41 PM on March 28, 2020


I guess the scenario where tattoo artists didn't want it treated as work for hire, is if I see your tattoo and go, "Hey, that's a neat tattoo, I want one like that," what then? The original artist did put some time and energy into designing it before ink went into skin.
posted by RobotHero at 4:44 PM on March 28, 2020 [2 favorites]


IANAL but “works for hire” are ones in which the underlying copyright belongs to the person who commissioned the work. A tattoo artist generally wouldn't be willing to give away their own right to create a similar tattoo. You'd want that to be an explicit agreement.

Australian law doesn't have an exception for “fair use”. It has an exception for “fair dealing” which is far more limited and would not, IMO, have protected the defendants in this case. If the game is sold here without a special license then I wouldn't be surprised if the publisher gets sued under the Copyright Lawyers' Perpetual Employment Act.
posted by Joe in Australia at 5:19 PM on March 28, 2020 [2 favorites]


IANAL, but I do know that "Work for hire" has a specific legal definition that isn't nearly as simple as "I paid you money to make this copyrightable work."
posted by Aleyn at 5:54 PM on March 28, 2020 [1 favorite]


I think this will be my new tattoo.
posted by sebastienbailard at 7:48 PM on March 28, 2020 [3 favorites]


I've drawn all of my tattoos and provided the art to the tattooists. They transferred my art to my skin. How could a tattooist claim copyright on that?
posted by ryoshu at 11:38 PM on March 28, 2020


My goal is to get extremely fat and tattoo Escher's Angels and Devils on my belly.
posted by Dumsnill at 12:02 AM on March 29, 2020


I've drawn all of my tattoos and provided the art to the tattooists. They transferred my art to my skin. How could a tattooist claim copyright on that?

Or more broadly, if you work with a tattoo artist to design something intensely personally meaningful, wouldn't it be uncomfortable to find them putting something very similar onto other people?
posted by Literaryhero at 4:46 AM on March 29, 2020


I think in general if you want to retain control of your artwork you should not permanently attach it to another person.
posted by Mr.Encyclopedia at 4:59 AM on March 29, 2020


If it's an original work by the tattoo artist, I would regard them as generally holding copyright on it, but with various exceptions for performance rights and whatnot. I think the court made the right call here—and probably would *not* give the OK to another tattoo artist using the same design.
posted by Belostomatidae at 6:34 AM on March 29, 2020 [1 favorite]


Ryoushu's question is an interesting one, in light of people such as Tim Steiner who is part of art project where the tatts and Tim's skin, are collectively considered an artwork currently owned by a German collector. The artwork is on display at MONA in Tasmania, and as part of that deal, Tim spends part of every week in the gallery (where he sits super still).

The acquisition grants the owner Tim's skin when he passes.
posted by onetime dormouse at 3:02 PM on March 29, 2020


In other news, NBA 2K's realism is *awesome*.
posted by Slarty Bartfast at 6:23 PM on March 29, 2020


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