The Murky Waters of Tattoo Ownership and Video Games

When you see a tattoo on someone’s body, you probably wonder what the significance of the tattoo is. Some people use tattoos to honor family members, like Lebron James’ portrait of his son on his forearm. Others get tribal tattoos, like Mike Tyson’s famous face tattoo. You might want to ask a person why they got their tattoo, but you would likely never ask: “Do you own the copyright to that tattoo?” 

An artist who paints a picture on a canvas owns the copyright in that painting because it is “fixed in a tangible medium,” the tangible medium being the canvas. That same logic applies to a tattoo artist—it may be on your body, but the copyright is owned by the tattoo artist. This fact doesn’t stop you from displaying your tattoos in public because you have an implied license to do so from the tattoo artist, which is also why it isn’t a problem when actors display their own tattoos on tv or in film. However, an issue can arise when that tattoo is reproduced on another actor or on virtual characters.

In 2011, the artist that created Mike Tyson’s face tattoo brought a copyright infringement lawsuit against Warner Bros. Entertainment Inc. The complaint alleged that the tattoo on Ed Helms’ face in The Hangover Part: II was infringing because it was identical and was shown without the artists’ permission (i.e., license).The case was settled in 2011 and the details of the settlement were not disclosed. 

More recently, Solid Oak Sketches brought a lawsuit against the NBA 2K video games based on copyright registrations for five tattoos on three NBA players. Solid Oak claims that their copyrights were shown in the game without their permission and, therefore, they infringe upon their copyright rights.  

Although the use of the tattoos in the video game are very brief and not easily seen, the defendants could not persuade a judge to throw the case out. And there is a good chance this case, like the Mike Tyson case, will end up being settled However, if this case goes to trial, or is decided by the court on summary judgment, it could shed light on future lawsuits brought by tattoo artists against the reproduction of their work in video games. Stay tuned for future updates on this case!