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Tattoos and copyright in the federal court

Written by Samuel O'Toole on 06 April 2018

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The age old question of who owns copyright in a tattoo may be on its way to being answered, in America at least.

In the case of Solid Oak Sketches v Take-Two, Solid Oak Sketches alleged that it had acquired rights from a number of tattoo artists who provided artwork to, amongst others, LeBron James, Eric Bledsoe and Kenyon Martin – all NBA stars.

In 2016 Solid Oak Sketches brought its case, it claimed that Take-Two had reproduced its tattoo designs, without consent, in Take-Two’s NBA 2K16 video game.

Take-Two went on to file a motion to dismiss, however this motion was dismissed by U.S. District Court Judge Laura Taylor Swain, whom stated that:

"While Defendants contend that the Tattoos in NBA2K are 'observable only fleetingly'; 'displayed only briefly'; 'a small part of the graphical display' when displayed; 'sometimes obscured by other graphics'; 'not displayed prominently'; and 'sometimes displayed out of focus,' Plaintiff denies each and every one of these characterizations of the Tattoos. Instead, Plaintiff contends that, if an NBA2K player selects Messrs. James, Martin and Bledsoe in a given game or series of games, or 'employs the broad range of the video game’s features to focus, angle the camera on, or make the subject tattoos more prominent,' 'the overall observability of the subject tattoos can be fairly significant.' Thus, it is difficult to determine whether the substantial similarity is apparent to the 'average lay observer,' if what he or she is observing varies in each iteration of the game."

It is without doubt that copyright law protects original works once the works are laid down to a fixed medium. However, it is not clear if the use of tattoos in a video game is too small of a use to be considered an infringement of those rights.

However, and what Take-Two’s dismissal brief explained of, is that if the decision goes in Solid-Oak’s favour, Solid-Oak may be able to ‘shakedown’ all of the publications and programs where the NBA players appear.

This isn’t the first time that tattoos and copyright have come into play together. Warner Brothers were sued by a tattoo artist for depicting Mike Tyson’s tattoo in the Hangover 2, unfortunately for the lawyers, this case did settle before it went to trial.

So will the age old question of owning copyright in a tattoo be answered and if so, how is copyright infringed with the reproduction of a tattoo – I hope so.

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