While legions of fans will focus with zeal and dread to see if LeBron James can lead the Cleveland Cavaliers through the NBA playoffs and back to a championship, agents, lawyers, and others representing the basketball superstar — as well as those who play similar roles for a host of celebrities and athletes — may be fixating, instead, on his super-sized guns, and most specifically the ink on them.
That’s because a federal judge in Manhattan has kept alive a lawsuit advancing the idea that tattoos, like the many that King James boasts, can be copyright protected.
Modern tech-based challenges — from embedded tweets to programming interface code — have reshaped copyright law. But the dispute over tattoos looms large and personally for tat artists and their subjects, as these decorations dating to ancient times cover not only more athletes and celebrities but also broader expanses of their epidermis.
Tats have become as common as chiseled physiques for pro athletes in the NBA, NFL, boxing, UFC, and soccer. Musicians, whether stars of hip-hop and rap or hard rock and country, adorn their skins wildly. Tinsel Town stars and starlets glom on to tats’ glam sooner it may seem than they can nab a mid-century modern house in the Hollywood Hills.
Lest anyone doubt the centrality of skin adornment to contemporary celebrity life, just consider how the internet blew up when the New Yorker, a renowned and popular magazine for elites and intellectuals, tried to read the tea leaves about a possible midlife malaise of A-lister Ben Affleck based, yes, on a tat crawling over the lumpen-looking star’s backside.
But how will their popularity play out in protecting tats with copyright? That’s the inky question facing U.S. District Judge Laura Taylor Swain, who denied video game publisher Take-Two’s motion to dismiss a lawsuit seeking millions of dollars over the reproduction of tattoos in the NBA 2K video game franchise.
In Feburary, 2017, Solid Oak Sketches sued Visual Concepts, LLC, 2K Games, Inc., and Take-Two Interactive Software, asserting they infringed the copyright to tattoos emblazoned on NBA stars Lebron James, Kobe Byrant, Kenyon Martin, DeAndre Jordan, and Eric Bledsoe. The firms were accused of wrongfully reproducing the skin designs in NBA 2K16 without authorization.
To the best that lawyers can find, no judge has firmly declared that tattoo designs can be copyright protected. In the dispute between a tattoo artist and Warner Bros. over Hangover 2 over boxer Mike Tyson’s face design, the parties settled. Another case between a tattoo artist and video game publisher THQ for a UFC fighter’s tattoo was determined not by copyright but in bankruptcy court.
To be clear, Swain declared it premature to rule if the depiction of tats by Take-Two and the other named defendants amounted to de minimis or fair use. That’s why the judge denied Take-Two’s motion to dismiss and allowed the case to proceed to trial, where a lot of folks, in movies, video games, and advertising and promotion no doubt will be watching closely to see what effective defenses, in action and law, might avert tat suits.
Flashes and fair use
Take-Two has argued, as part of its fair use copyright defense, that the athlete tats displayed in its video game were “observable only fleetingly.” But Solid Oak has countered that, depending on features in the game, “the overall observability of the subject tattoos can be fairly significant.”
The court has found it difficult to determine if substantial similarity is present when the game at issue uses interactive software that allows for game play variety. “At this stage of the proceedings, there is no objective perspective as to how the defendants’ video game is generally played, or to what extent certain game features can be or are actually utilized, that would allow the court to make determinations about the choices and subsequent observations of the ‘average lay observer,’ or about the observability and prominence of the Tattoos,” Swain wrote.
Take-Two’s dismissal brief warned that “it would be illogical to allow Solid Oak to seek rents each time that a player bearing one of its tattoos commercializes his likeness, or worse, appears in public, and therefore arguably ‘publicly displays’ the Tattoos under copyright law.” Solid Oak fired back that this is an inappropriate stage of the proceedings for the court to consider fair use.
Swain agreed, stating that “the difficulties inherent in conducting a side-by-side comparison of the video game and the tattoos, further evidence must be considered in connection with the fact-intensive question of the applicability of the fair use defense.”