Tattoo U: Copyright Infringement Tattoo Case vs. Game Maker Goes Ahead

A judge in the Southern District of New York will allow the parties to proceed, counterclaims and all, in a novel case involving the copyrightability of tattoo designs and their alleged infringement in a basketball video game (Solid Oak Sketches LLC v. Visual Concepts LLC, Case 1:16-cv-00724-LTS).

The plaintiff is a company that licensed various tattoo designs from artists; these designs were reproduced on the bodies of basketball players such as Kobe Bryant and Lebron James. The defendant produces the video game NBA 2K, which updates annually (“NBA 2K16,” etc.). In their video games, which have sold millions of copies, players such as Lebron James are reproduced down to the finest detail, including accurate reproductions of their tattoos.

While this may seem like an esoteric concept, it is really straight forward from a copyright law perspective. The designs themselves qualify as “pictorial, graphic, or sculptural works” under 17 U.S.C. §102(a)(5), and they have been “fixed in a tangible medium of expression” permanently on the skin of humans, as both the original complaint and second amended complaint correctly point out. Therefore, digitally recreating these designs in the video game violates the exclusive right to reproduce the works that is enjoyed by the copyright owner (or licensee in this case), and selling the video game containing the infringing reproductions violates the public display and distribution rights of the owner/licensee.

Indeed, while the issue of tattoo copyrights has not been addressed on the merits by any court, the judge in a case involving use of Mike Tyson’s facial tattoos in the film Hangover II (S. Victor Whitmall v. Warner Bros.) said “of course tattoos can be copyrighted.  I don’t think there is any reasonable dispute about that…[T]he tattoo itself and the design itself can be copyrighted, and I think it’s entirely consistent with the copyright law.”

In its Second Amended Complaint, the plaintiff dropped allegations of copyright infringement related to the “Lion’s Head Tattoo Artwork”; the defendants then filed a declaratory relief action challenging the validity of the copyright in this work and claiming that its uses of the tattoos were de minimis, as well as a fair use, and thus excused. The plaintiffs filed a motion to strike the counterclaims, on the grounds that they were “mirror images” of the defendant’s affirmative defenses.

The court stated that a counterclaim can be dismissed if it “add[s] nothing to the affirmative defenses” and “do[es] not constitute an independent cause of action.” However, the court ruled that in this case the counterclaimant had “a substantial interest in the resolution of the de minimis use and fair use declaratory judgment counterclaims” because the company “releases the NBA 2K game annually” and “depicts other tattoos–including those that have been subjects of Solid Oak’s previous demands…in a similar manner.”

With the motion denied, we may yet get a definitive statement from the court about the tattoo copyright validity issue, and whether reproductions of such details in video games are either a de minimis use or a fair use and therefore excusable.

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