Tattoos in Video Games: Who Owns the Ink
By Lee Colrick
One of the appeals of video games is that players are given the chance to play as their favorite musician, celebrity, or sports athlete. When creating a digital avatar of a real life idol details matter; this includes the idol’s tattoos. Tattoos that are a unique artistic creation can be protected under U.S. copyright law. Under 17 U.S. Code §102, creators of literary, musical, dramatic, pictorial, or graphical work that is fixed to a tangible medium, like skin, have the exclusive right to reproduce and distribute their work. Furthermore, the artist retains the copyright of the work unless he or she transfers or licenses the tattoo.
Tattoo artists have sued gaming programmers for copyright infringement when a gaming programmer has digitally recreated the tattoo artist’s work on a video game avatar. The infringement occurs not when a photo is taken of the person but when the art is digitally reproduced to be an exact replica of the original tattoo. However, most cases involving the copyright infringement of reproduced tattoos in video games have been settled out of court, so unfortunately there is no definitive case law determining who owns the rights. Thus, lines are blurred when it comes to who owns the copyrights to a tattoo when it is digitally recreated.
However, there is a current case, James Hayden. V. 2k Games Inc., being litigated in the District Court of Northern District of Ohio Eastern Division, which could finally shed some light on the issue. In this case, 2k Games Inc. and Take Two Interactive Software released a video game called NBA 2k16 with a LeBron James avatar that included the player’s famous tattoos. James Hayden, the tattoo artist, brought the gaming developers to court. Hayden obtained copyright registrations for six tattoos on the skin of Danny Green, LeBron James, and Tristan Thompson. Hayden argued that by digitally reproducing the art the gam
ing developers were infringing on the copyrights of the tattoo artist.
The district courts stated that, although he might not get a favorable holding, Hayden had shown enough evidence that he was entitled to seek damages but only for infringements that occurred after Hayden had procured the intellectual property rights. Having procured them in 2016, Hayden is entitled to seek damages for the use of his tattoos in both the NBA 2k17 and NBA 2k19 version of the game.
In previous cases involving digital tattoo recreation, 2k Games Inc. argued that the reproductions were blurry and hardly ever seen and were protected under the Fair Use Doctrine of U.S. Copyright Law. The doctrine permits the reproduction of copyrighted material if it is for criticism, comment, news reporting, teaching, or scholarship. Legal professionals have made the argument that if a tattoo artist inks a tattoo on a celebrity, there is an implied license given to the celebrity because the tattoo is now part of a celebrity, and being part of a celebrity, it can be implied that it could be reproduced in different mediums, including video games. If you are not a celebrity, then you might be out of luck; all rights are owned by the tattoo artist.
However, since there is no binding law that indicates an implied license exists, a verdict for either party in James Hayden. V. 2k Games Inc. would help answer the question of who owns the ink and how copyright law surrounding tattoo reproduction in video games would be implemented.