Teenagers throughout the world would tell you that sports video games have vastly improved over the last 20 years. Game controls have become more sophisticated, player movements have been refined, and depictions of sports venues have become infinitely more detailed. Yet, the most striking difference between the games of today and those of the mid-to-late 90’s are the depictions of the actual bodies of the players. The generic figures of early video games have been replaced by astoundingly accurate portrayals of the athletes we see on television. Whether it’s James Harden’s beard, Kobe Bryant’s scowl, or Lebron James’s receding hairline, the precise features depicted in video games can often make it difficult to differentiate the animated figure from the real thing. Interestingly, one aspect of these player portrayals, namely the use of player tattoos, has led to a heated intellectual property battle.
On February 1, 2016, licensing company Solid Oak Sketches LLC filed a complaint against Visual Concepts LLC, 2K Games Inc., and Take-Two Interactive Software Inc. for copyright infringement. The subject of the complaint was the use of tattoos on players such as Lebron James, Kobe Bryant, and Eric Bledsoe in the NBA 2K16 video game. In short, Solid Oaks claimed that, based upon the copyright licensing agreements it had signed with the players’ tattoo artists, it had the exclusive right to publicly display these tattoos. As such, Solid Oaks claimed that it was entitled to either actual damages or statutory damages and attorneys’ fees from the producers and distributors of NBA 2K16.
Several interesting legal issues have arisen during the period since the original filing of the complaint. Obviously, the most important issue in the case is whether a tattoo is actually copyrightable. The Copyright Act states that “[c]opyright protection subsists…in original works of authorship fixed in any tangible medium of expression.” There seems to be little reason to doubt that the subject tattoos satisfy both of these requirements. Assuming the artists didn’t copy the designs from elsewhere (there is no indication that this occurred), each illustration on a player’s skin is an “original work of authorship.” As far as the second prong is concerned, while a human body may be an unusual space for a copyrightable work to be “fixed,” it does satisfy the literal meaning of the words “tangible medium of expression.” However, there are some legal authorities who challenge this position. During litigation regarding the use of Mike Tyson’s facial tattoo in The Hangover II (Whitmill v. Warner Bros. Ent., Inc.), copyright treatise author David Nimmer argued against copyright protection for tattoos. Comparing skin to a frosty window pane or wet sand as the tide approaches, Nimmer suggested that it does not qualify as a tangible medium of expression. Seemingly, the ever-changing nature of skin bothered Nimmer when considering its place as a viable medium for copyright protection. Yet, tattoos on skin are significantly more fixed and unchanging than any figure or illustration made on a frosty window pane or in wet sand. Additionally, the fact that a work may change slightly over time does not exclude it from copyright protection. For example, paintings fade, but they are indisputably copyrightable. So, in my humble opinion, Nimmer’s position on skin as a tangible medium needs some clarification.
Another issue which has arisen involves the availability of remedies if Solid Oaks were to prevail in its copyright infringement claim. As stated above, Solid Oaks sought either actual damages or statutory damages and attorneys’ fees. However, according to U.S. District Judge Laura Taylor Swain, statutory damages and attorney’s fees are only available when the plaintiff has registered its copyright prior to the alleged infringement. According to Judge Swain, the alleged infringement began with the tattoo designs used in an earlier game, namely NBA 2K14, which was released in 2013, while the tattoo designs weren’t registered with the U.S. Copyright Office until 2015. While the plaintiffs argued that each new version of the game represents a new infringement on the tattoo copyright, a somewhat obvious and persuasive rebuttal is that the subject tattoos did not change from one version of the game to the next. Therefore, the use of the tattoos in the NBA 2K16 version is in fact a continuation of the infringement which began with the NBA 2K14 release back in 2013.
Adam Ofman is a J.D. candidate, 2018, at NYU School of Law.