Judge to Decide Vexing Question in Entertainment: License Needed to Show Body Tattoos?

A judge lets Take-Two, publisher of 'NBA 2K,' seek declaratory judgment against the owner of a tattoo design featured on LeBron James' body.
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LeBron James

If a film, television show or video game incidentally shows a copyrighted tattoo, is that infringement? The question has provoked several law journal articles and quite a bit of media coverage over the years without any firm judicial opinion. However, some guidance may be forthcoming thanks to a decision on Tuesday from a New York federal judge.

Take-Two Interactive Software, the videogame publisher of NBA 2K, has been in court for more than a year with Solid Oak Sketches, which claims to own copyrights to several tattoo designs featured on the bodies of NBA stars LeBron James, Kobe Bryant, Kenyon Martin, DeAndre Jordan and Eric Bledsoe. After being sued, Take-Two went on the offensive with counterclaims seeking a judicial declaration that its use of tattoos is both fair use and de minimis use.

U.S. District Court judge Laura Taylor Swain on Tuesday permitted those counterclaims to proceed, writing that resolution of disputed issues would "serve a useful purpose" and "offer relief from uncertainty."

For many, awareness of the copyright issues was first raised when Mike Tyson's tattoo artist sued in 2011 to stop the release of The Hangover Part II. Tyson has a pretty distinguishable tattoo on his forehead, which was stamped on Ed Helms' head in the film. Before the case got far, it was settled. The next closest a court ever got to deciding the issue was when tattoo artist Christopher Escobedo brought claims against videogame publisher THQ, which subsequently filed for bankruptcy. Escobedo, who had inked a UFC fighter, later asked a bankruptcy court to determine the value of his claim. But there was never a big decision that could be cited as precedent.

Copyright law protects original works of expression fixed in a tangible medium, so there's no reason why a tattoo inked onto someone's body wouldn't qualify. However, there are all sorts of copyrighted material that make their way into the background or foreground of an entertainment production. The question of fair use comes down to the purpose and character of use, the nature of the copyrighted work, the amount and substantiality of the portion taken and the effect of the use on the potential market.

Take-Two in its court papers argues that tattoos appear "only fleetingly" and are "not emphasized" in NBA 2K. The publisher says it is doing nothing more than depicting athletes as they appear in real life and that it is not selling the tattoos separately.

"When the Tattoos were inked, the tattooists knew that the individuals that they were inking would appear in public," wrote Dale Cendalli in the counterclaims. "Indeed, if Solid Oak were correct, it would mean that anyone appearing in public, on a television program, or in an advertisement would need to license the display of their tattoos. This is not the law and, if it were, it would be an encroachment on basic human rights."

Solid Oak, represented by Darren Heitner, cites scholarly journals and points to registration certificates. But the basis for requesting dismissal of the counterclaims was premised on the argument that Take-Two was doing nothing more than reiterating affirmative defenses. Heitner argued that the counterclaims were "redundant and entirely duplicative" and that concern about future legal action was a "red herring."

"This is not a case about whether tattoos are copyrightable, but instead whether Defendants have infringed on Plaintiff’s particular copyrights through the specific use," added Heitner.

Judge Swain takes a wider view.

She writes, "Take-Two has a substantial interest in the resolution of the de minimis use and fair use declaratory judgment counterclaims because Take-Two releases the NBA 2K game annually, and Take-Two depicts other tattoos — including those that have been subjects of Solid Oak's previous demands in a similar manner."

Besides the issues of de minimis use and fair use, Take-Two is also challenging the validity of what's known as the "Lion's Head Tattoo Artwork copyright," otherwise known as what's featured on LeBron James' right bicep, over allegedly faulty creation dates listed on registration papers with the U.S. Copyright Office.