Take-Two Software Sued Over Copyright On NBA Players' Tattoos

from the ink-blot-test dept

Wed, Feb 3rd 2016 2:07pm — Timothy Geigner

Are tattoos covered under copyright law? Yeah, probably. But also, hey, maybe not. But if yes, how much control does the artist get to exert over depictions of the copyrighted tattoo? After all, it's on somebody's skin. And, hey, that somebody might be famous, like an athlete, who might then be depicted in video games about that sport. If so, then we get to find out if depictions in artistic works, such as video games, would fall under fair use and/or First Amendment provisions. It seems nobody is actually sure how to answer these questions, because what few cases have been brought before the court all appear to have ended in settlements and low-level court rulings.

Which, I suppose, is why they seem to keep on a-coming. The latest is a company named Solid Oak Sketches, which claims to own the copyright on the tattoo designs appearing on the bodies of several NBA players, including LeBron James, Kobe Bryant, and DeAndre Jordan. The company has recently filed a copyright infringement suit against Take-Two Software, makers of the NBA2K franchise.

Solid Oak is suing Take-Two Interactive Software and other companies associated with the videogame NBA 2K16 for unauthorized reproductions of those tattoo designs. The question over whether tattoo designs are copyrightable has never been fully decided by a court, as acknowledged in the new lawsuit. Victor Whitmill's lawsuit against Warner Bros. over Hangover 2 settled as has other disputes including one by a tattoo artist, Christopher Escobedo, who inked a UFC fighter and later asked a bankruptcy court to determine the value of his tattoo claim against videogame publisher THQ.

On one hand, copyright law protects original works of expression fixed in a tangible medium. In the Whitmill case, before it settled, the judge commented, "Of course tattoos can be copyrighted. I don't think there is any reasonable dispute about that." An opinion was never issued, however. In the THQ case, Escobedo was awarded $22,500 for his lion tattoo. Then again, it could be argued that tattoo appropriation in an expressive work is de minimus.

Not only that, but when combined with a First Amendment argument, it's difficult to see exactly why tattoo artists should hold any kind of sway in these cases. The depiction of the players has been licensed by the NBA Players Association, after all, and the tattoos faithfully reproduced within the game are a part, albeit a small part, of that image. I'm struggling to understand why Solid Oak's quarrel is with the game-makers and not the NBAPA. But even then, the idea that players' rights to license their own images might be stilted by what is essentially a form of voluntary branding, a la cattle, is insane.

As it happens, I am a player of this particular franchise. The tattoos add to the ambiance and realism of the player depictions, but they aren't in any way central to the game. Arguing otherwise is silly. Yet, because LeBron James was featured on the cover, the lawyers for the plaintiff argue that the tattoos are "the face" of the game, thus arguing for higher damages than the Escobedo case. Note that the tattoo on LeBron James' arm in question is a portrait of his son. They had previously asked for just over $1.1 million in a demand letter for a perpetual license.

As in most other similar cases, I would expect Take-Two to settle, but I truly hope they do not, because it's way past time that we get some clarity on whether or not tattoo artists can hold hostage likeness rights in this way.

297555770-Tattoo-Copyright-NBA2K (PDF)297555770-Tattoo-Copyright-NBA2K (Text)

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Filed Under: copyright, deandre jordan, kobe bryant, lebron james, nba 2k16, tattoos
Companies: solid oak, take two interactive

37 Comments

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Anonymous Coward, 3 Feb 2016 @ 2:11pm

Wouldn't the tattoo be covered under a work for hire exception, granting the copyright to the "employer" in the person who ordered the tattoo.
Additionally, it may be collaborative creation, if the person receiving the tattoo instructed the artist on the what, the how, etc.
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pegr, 3 Feb 2016 @ 2:14pm

Re:
I bet folks who ink NBA players are sure to get a signed statement that they own the copyright to the work. It's kinda sleazy if you ask me.
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That Anonymous Coward (profile), 3 Feb 2016 @ 2:28pm

Huh... first sale doctrine.
They sold the reproduction of the design to the player, for which they were paid.
While they might hold copyright on the design proper, all reproductions of that work are derivative as the original is on a flat page and not a human body. Human bodies vary and might require different inks or patterns to get a similar effect.
They sold that particular pattern reproduction to the player the first sale if you will. So wouldn't that mean that their interests are exhausted in that particular work.

Also worth noting is do they demand payments from anyone else who takes a picture that captures any portion of the tattoo at the center of this, or are they just boldly demanding cash from the deepest pocket they can find.

Copyright, it can do anything... its main superpowers seem to be making people greedy idiots & causing headaches.
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Anonymous Coward, 3 Feb 2016 @ 2:34pm

I think we need to see someone make the argument that tattoos are not "fixed in a medium" for the sake of copyright because they change as people gain or lose weight and as people age.
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Anonymous Coward, 3 Feb 2016 @ 2:54pm

Re:
This is what I was coming here to say. I have many tattoos. If someone sued someone else over tattoos on my body I'd lend my voice to say that they were paid for their fucking work and need to move on down the fucking road.

I can see a different side though. All of my tats are custom. I don't get anything off of the flash on the walls, or anything that was pre-drawn. I assume that people that make serious money are the same way and not just someone who walks in and says "I want that one!" while pointing to the astrological sign. If it's a tattoo from flash on the wall, things could easily get muddy. However, any custom work is absolutely a work for hire.
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Anonymous Coward, 3 Feb 2016 @ 3:01pm

Re: Re:
Just don't let the tattoos appear in any image associated with a money making enterprise, because as soon as they smell money, lawyers will support any case to obtain some of it.
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DandonTRJ (profile), 3 Feb 2016 @ 3:06pm

Re:
First sale doctrine applies only to the physical copy, not the underlying work. The underlying work is what's being reproduced in the game. In this context, first sale would mean that the player can cut off his own skin with the design on it and sell it to someone else. Which would be kind of gross, but legal (insofar as copyright was concerned).
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DandonTRJ (profile), 3 Feb 2016 @ 3:09pm

Re:
And a drawing on a piece of paper can change as the ink and paper fade. I suspect the work would have to be in a far greater state of perpetual flux for that argument to fly, like a botanical garden (which there's case law on). Also, the tattoo artist probably has a sketch of the design on a more traditional medium, which I suspect how it gets deposited with the Copyright Office at the time of registration, negating the issue entirely.
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Anonymous Coward, 3 Feb 2016 @ 3:25pm

Re:
"Huh... first sale doctrine."

Eh, no. First sale only covers the actual tattoo, not reproductions of it.

Fair use factors...

"the purpose and character of the use" - The use is commercial. The use is also transformative, however.

"the nature of the copyrighted work" is a tattoo. I'm guessing this is against fair use, since it is creative, but I'm not sure.

"the amount and substantiality of the portion used in relation to the copyrighted work as a whole" - I assume the entire tattoo was reproduced, but this was necessary. Slightly against fair use.

"the effect of the use upon the potential market for or value of the copyrighted work" - The tattoo artist cannot plausibly argue that this game will make his tattoos LESS in demand. And if you limit the analysis to this one tattoo, then it's clear that this one tattoo is unique and cannot be sold again anyway. Nobody is going to take a screenshot from the game, print it, and paste it on their arm, instead of getting a tattoo. Heavily and in my opinion decisively in favor of fair use.
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Scote, 3 Feb 2016 @ 3:28pm

Under copyright law "work for hire" isn't what it sounds like
Under copyright law work for hire is defined by statute, not by what it sounds like. Generally, it applies to *employees* and means that the copyright in work performed by W2 employees belongs to the employer. The **customer** at a tattoo parlor is not an "employer." Getting a tattoo is not "work for hire" under copyright law, at least not for the customer. However, if the tattoo artist is an employee of the tattoo shop, work for hire would apply and the copyright in the tattoo would belong to the tattoo shop.
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Scote, 3 Feb 2016 @ 3:44pm

You need a written copyright assignement
" However, any custom work is absolutely a work for hire."

Nope. That is a common misunderstanding. People hear the term "work for hire" and think the copyright in any work they commission will belong to them. In reality, the copyright will belong to the person or company who created it.

Under copyright law "work for hire" generally refers to actual W2 employees. So, unless you own the tattoo parlor and the tattoo artist is your employee, no, custom work does not belong to you. If the tattoo artist is an independent contractor who rents a stall, then the copyright belongs to them. The retail customer, or even a person who 1099s a contractor, does not own the copyright in the art they commission absent a *written* copyright assignment to that effect.

So, the copyright in the custom tats you think you have? You don't have it.

I'd like to think there is an implied license in tattoo work that implies that people are free to take photo's of people with tattoos and use them, however, copyright statute is specific that copyright assignment must be written, so I don't know if any such implied license could apply. IANAL.

This issue does come up for photographers, though, and here is one photographer's (not a lawyer's) attempt to muddle through the licensing issue:

http://improvephotography.com/35091/copyright-nightmare-taking-photos-of-people-with-tattoos/
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Scote, 3 Feb 2016 @ 4:02pm

Doh!
Ha, the article I linked to *is* by a lawyer. From the article:

"I’m a lawyer, but I’m not your lawyer, so you’re best to confer with your own counsel licensed to practice in your own jurisdiction before making the decision for yourself. "

I didn't remember that from when I read it months ago. However, even to an actual lawyer, the issue of the copyright of tats is a mess for photographers.
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DB (profile), 3 Feb 2016 @ 4:15pm

Photography has been around for a century and a half, so this shouldn't be a new issue. But somehow it is.

I see this as an example of IP maximalism -- copyright expansion and design patents -- run amok.

Essentially every image is going to have elements that someone will claim to own. The design of a chair, clothing, the shape of a bottle, signs on the wall, right down to the fonts in those signs.

Most or all of those elements are going to be incidental. But who gets to decide that? Who gets to decide that the New York City skyline is a trademark, or can be copyrighted? Who decides if a specific use needs to be licensed? Which tattoo gets to be considered "art" worthy of collecting royalties?

The answer can't be that using an image requires paying ten or a thousand (10,000?) rights holders. Any workable ruling has to be closer to "zero or one".
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JMT (profile), 3 Feb 2016 @ 4:32pm

Re:
A tattoo is no less fixed than a painting, book, video/audio recording, digital file, etc, that be all be damaged or destroyed either in a moment or with time.
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TasMot (profile), 3 Feb 2016 @ 4:48pm

Re: Re:
It will be up to the courts to decide, but it would seem that the tattoo becomes an identifying mark of the person much as hair color and birth marks. In the game, it is an identifying mark of the person, not a reproduction of the tattoo as in a separately salable item. It "should" end up being, if nothing else, a fair use transformation of an identifier of the person it is on into the game character. It does not affect the original work, and is not a replacement for the original work. It simply becomes an identifying mark of the person who presumably paid to have it affixed to their body. If the tattoo were not faithfully reproduced into the game characterization, that "famous person" could possibly no longer be recognizable without their identifiable marks.

Next, barbers are going to want to "own" the cut of my hair (or what's left of it anyway) because they cut it. Then, I'll have to get a signed release from my barber to have the family portrait taken for our family Christmas cards.

What is the world coming to?
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Anonymous Coward, 3 Feb 2016 @ 6:18pm

The Case of the Needlework Design
This is a case of a needlework design. Ha Ha - get it - needle ??

We were told in our needlework guild that we could not show the packaging of a needlework kit on eBay, but we could show the item that was made from the pattern. So what do you do if you want to sell the pattern, but haven't done the cross-stitch?

So, let's do a search of:
needlework design copyright infringement court opinion

Oh, here's one - a recent one at that - about cheerleading outfits. Somebody could have a lot of fun with this one.

Varsity Brands, Inc. v. Star Athletica, LLC

Or how about this one?

Dakota Collectibles made it very clear, in a notice to our Distributors and Retailers, and in the Embroidery Software License the end user receives, that these licensed designs "cannot be sewn on items for resale". (See attached Notice and License.) This means these designs can only be sewn, by the purchaser, on their personal items for their personal use. Commercial reproduction and resale of these designs is prohibited.
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That Anonymous Coward (profile), 3 Feb 2016 @ 6:35pm

Re: Re:
It was a pondering on my part, as I often say I'm not a lawyer and I don't even pretend to be one on tv.

The underlying work, in my mind, has become part of something else. Tattoo artist aren't machines and even the very best would be hard pressed to reproduce the work perfectly over and over.

This case pretty much is just another symptom of a culture of you have money and you should pay me because copyright.
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Anonymous Anonymous Coward, 3 Feb 2016 @ 7:22pm

Re: Re: Re:
Doesn't law enforcement have a database of identifying marks, which includes tattoos? What about gang related tattoos where several to many have the same design?

Then there is the issue of what if the tattoo is mangled or destroyed by say a car accident. Could the tattoo artist be compensated for the destruction of their IP?

What if the person with the tattoo gets tired of the design and goes to another tattoo artist and gets some part reworked or something added. Would one then have to pay both artists, or would the original artist have a claim against the second artist for doing a 'mashup' of their work.

I have a headache.
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Anonymous Coward, 3 Feb 2016 @ 8:28pm

Re: Re: Re: Re:
"Could the tattoo artist be compensated for the destruction of their IP?"

No, just like an author doesn't get compensated if one of their books burns in a fire, or a software company doesn't get extra money if some old floppy goes bad. They don't lose their IP if a physical copy is destroyed. That copy is already sold; they have already received their compensation for it.
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Anonymous Coward, 4 Feb 2016 @ 1:00am

Mike Masnick just can't stand it when copyright law is enforced.
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Anonymous Coward, 4 Feb 2016 @ 4:29am

Tattoo artists must have caught wind of copyright trolling and are now trying their hand at it.

No.14 said it best:
"This case pretty much is just another symptom of a culture of you have money and you should pay me because copyright."
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Anonymous Anonymous Coward, 4 Feb 2016 @ 6:29am

Re: Re: Re: Re: Re:
But tatt9os are not copies. They are individual original works.
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Anonymous Coward, 4 Feb 2016 @ 7:35am

Re: You need a written copyright assignement
I humbly admit that I was wrong. From Copyright.gov:

Section 101 of the Copyright Act (title 17 of the
U.S.
Code
) defines a “work made
for hire” in two parts:
a. a work prepared by an employee within the scope of his or her employment
or
b. a work specially ordered or commissioned for use

My tattoos are a work specifically ordered or commissioned for use. However, as I read it you are right and I'm a little pissed about that. I assumed (correctly) that it fell under a work specifically ordered or commissioned for use as part of a compilation as you stated. I assumed (wrongly) that was enough. Without a signed document that's worthless.

Either way, I'm not famous enough for it to matter but shit like this is just one more reason why copyright is absolutely broken. The tattoo parlor was paid. It's no longer theirs and is now part of me.

So my next question would be if I had someone that wasn't at the tattoo parlor do the drawing (commissioned the work, got the written form), then it should be covered, right? I have enough problems with copyright because I'm a musician who hates the "rights" organizations. This is just one more thing for me to hate. In truth, copyright should be an opt-in rather than an opt-out system. That'd fix a bunch of this mess. Decent time limits would fix the rest enough that most people (people, not corporations) would be happy with it.
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Anonymous Coward, 4 Feb 2016 @ 7:59am

Re:
Anonymous64 just hates it when due process is enforced.

DMCAed.
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Anonymous Coward, 4 Feb 2016 @ 8:28am

Just do what Google did with news snippets, remove them from the game and we game players and NBA players complain point them to the tatoos artist.

Then they will have to communicate with the NBAPA.
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Scote, 4 Feb 2016 @ 8:36am

Re: Re: You need a written copyright assignement
"So my next question would be if I had someone that wasn't at the tattoo parlor do the drawing (commissioned the work, got the written form), then it should be covered, right?"

That's a bit like asking what if you had someone compose music and assign you the copyright to the composition, then recorded a musician playing the music. You wouldn't own the copyright on the performance, just the underlying composition. Even if the tattooist is "just copying" the work from paper to a tattoo that is no different than a musician "just copying" a composition by playing the notes. In each case, the talent of the artist in "copying" creates a derivative work with it's own expression.

You need a copyright assignment from the tattoo artist, plain and simple. And an assignment from the original artist if a different artist created the design.

IANAL, though, so be sure to check this out for yourself.
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Wyrm (profile), 4 Feb 2016 @ 9:05am

Re: Re:
Nice point by point analysis.
Although I would conclude that point 3 is instead slightly in favor of fair use (based on "necessary"), point 4 is definitely the conclusive factor here.
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Anonymous Coward, 4 Feb 2016 @ 11:30am

Re: Re: Re: You need a written copyright assignement
This whole thing is a fucking wreck. I hate everyone who drafted these laws, and I hate you for pointing them out (not really though, good explanation).
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Anonymous Coward, 4 Feb 2016 @ 8:39pm

Re: Re:
Fuck you too, Masnick. I hope you die in a fire and your family gets fed through a wood chipper.
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Bergman (profile), 5 Feb 2016 @ 12:14am

Re: Under copyright law "work for hire" isn't what it sounds like
Which might be a way to derail a tattoo copyright lawsuit, if the guy suing is not the owner of the place he works.
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Anonymous Coward, 5 Feb 2016 @ 1:07am

Re: Re: Re:
Boys and girls step right up and see copyrights best and brightest.
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Wendy Cockcroft, 5 Feb 2016 @ 3:01am

Re: Re: Re:
I hope he and his family live forever in luxury and comfort pointing and laughing as copyright rent-seeking is supplanted by other business models. It's a little dream I have.
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Anonymous Coward, 5 Feb 2016 @ 3:10am

Re: Re: Re:
Not Mike, but thanks for playing!

You copyright fanboys are paranoid and psychopathic. Good to know!
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Anonymous Coward, 5 Feb 2016 @ 8:52am

Re:
So could it be derailed by a famous person with their tattoos publicly denouncing the acts of the tattoo shop? "I don't know if what they're doing is legal, but it sure is shitty and I'll never get another tattoo there. In fact, I think I'll have these covered by someone who wants to act like a decent human being."
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Manok, 7 Feb 2016 @ 8:40am

Why is nobody talking about the copyright on their hair cuts?
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Anonymous Coward, 5 Mar 2016 @ 2:17am

Re: Re: Re:
Which is why you would then be sued for trying to stifle the tattoo artists' speech
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Anonymous Coward, 5 Mar 2016 @ 2:27am

paying to copy, that can't be right
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