Over at Vice Sports, Aaron Gordon has a fascinating piece up about intellectual property rights and tattoos. He opens with the case of the NBA2K video game series, which is currently being sued by a tattoo artist agency over the games’ digitally recreated tattoos, which appear on the virtual bodies of players such as Kobe Bryant and LeBron James. But copyright issues get murky when we are talking about tattoos. So just who exactly owns those inked images?
On the face of it, the answer seems obvious. Tattoo artists charge for their work, with a reasonable expectation that the art will be seen by others, according to Yolanda King, Associate Professor at Northern Illinois University College of Law and counsel at Advitam IP, an intellectual property law firm. For example, when Shawn Rome gives James a tattoo, he is giving James an implied license to display the tattoo in the arena, on television, and anywhere else a camera catches him. Rome owns the design, and James owns the right to display it on his body.
But when that tattoo is on the body of a celebrity, and the design gets copied, re-created and sold for profit by third parties, the ownership issue becomes much thornier. NBA2K publicly touts its ultra-realistic graphics and player design, specifically singling out tattoo recreation as an element of that realism. It features specific NBA player tattoos prominently in promotional materials. However, the game’s makers didn’t get permission from the legal rights holder of those designs, Solid Oak Sketches. So the basic question before the Southern District of New York courts is this: is what NBA 2K does with tattoos any different than if the game’s makers had used an unlicensed photograph to promote their product?