Credit: NBA 2k20
Concurrent with the advent of the technological age has come a rapid increase in the quality of graphics. This refinement has allowed animators and graphic artists to create more and more realistic visuals, an ability that has been quite beneficial to the video game industry. Graphics have advanced from Atari images—where the imagination was utilized more than recognition was—to images that are incredibly detailed, realistic, and immediately recognizable. While this advancement has allowed video game developers to create games that could be mistaken for real-life videos, issues have also arisen from such exact replication. In particular, recreating people’s tattoos in video games has brought about a slew of litigation and raised a multitude of copyright questions.
Tattoos are used in video games such as NBA 2K, where in-game models of real NBA players are made to perfectly mirror their real-life counterparts, including the reproduction of any tattoos they may have. Since these tattoos already exist on the players’ bodies, one would think that it their recreation would need to be licensed in order to appear in the video game. But is this the case? While a few courts have made decisions on related issues, the main controversy remains unresolved. To understand these decisions and to navigate where to go from here, it is important to understand the standard that U.S. copyright law already lays out.
Copyright protects the works of authors in various forms such as paintings, photographs, illustrations being pertinent to the present analysis. Not only does an author’s work have to fall within one of these enumerated categories, it must also satisfy the additional originality and fixation requirements. Originality requires that a work be independently created by a human author accompanied by a modicum of creativity, an incredibly easy standard to meet. Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991). Furthermore, fixation requires the work to be captured in a sufficiently permanent medium that allows the work to be perceived, reproduced, or communicated. If an author meets these requirements, they are entitled to an attractive degree of rights to reward them for their innovation. While there are many rights granted to authors, this article will only focus on public display rights, as the issue of copyright as applied to tattoos has primarily been concerned with that particular right.
One infringes upon this public display right when they display another’s copyrighted work without authorization. However, there are defenses to this, most importantly being fair use. Fair use allows would-be infringers to argue that their use of the copyrighted work is permissible as a work of criticism, comment, news reporting, teaching, scholarship, or research of the original work. However, this list is nonexclusive, as courts can find other works to be fair use based on: (1) a determination of the purpose and character of the use, including whether the use or purpose was transformative; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used; and (4) effect of the use upon the potential market for or value of the copyrighted work. While transformative use is not dispositive, it has become the core of most fair use cases, as is the case here.
Federal courts, in interpreting the copyright statute, have come to opposing rulings based on seemingly parallel facts. Two particular cases are illustrative of this. The first decision comes from the District Court for the Southern District of New York, in a case brought by a tattoo licensing company, Solid Oaks, against 2K Games and Take-Two Interactive. Solid Oak Sketches, LLC v. 2K Games, Inc., 449 F. Supp. 3d 333 (S.D.N.Y. 2020). The case involved the unlicensed use of the artist’s copyrighted tattoos inked on three NBA players that were later recreated in the NBA 2K game. The defendants were able to successfully argue a transformative fair use, as the recreations were only for “general recognizability” purposes, were barely visible while playing the majority of the game, and appeared in only roughly 0.0003% of the game data. Amongst other reasons, the court granted summary judgment to the defendants as no reasonable factfinder could have found against fair use.
Yet, in the Southern District of Illinois, Take-Two Interactive lost a similar infringement claim. Alexander v. Take-Two Interactive Software, Inc., 18-cv-966-SMY (S.D. Ill. Sep. 22, 2022). Tattoo artist Catherine Alexander sued for the unlicensed use of her tattoos reproduced on the wrestler Randy Orton in the WWE 2K video games. The court here was unconvinced by the fair use argument and pushed the case forward to a jury trial, which found for the plaintiff. The court found that the use of the tattoos in the video game was not transformative, as both purposes were to be displayed on Norton’s body. This differs from Solid Oaks, which held that the purpose in NBA 2K was for general recognizability, while the purpose of the actual tattoos was personal expression.
This discrepancy raises questions about the future of tattoos used in video games. Some commenters have suggested that the problem could be solved by having athletes enter into licensing agreements with their artists before getting tattooed. Yet, this may lead to higher costs for tattoos as artists would not want to lose out on the licensing money from the game. Or, perhaps video game developers will just choose to remove tattoos from their games altogether, avoiding all issues, but leading to a less realistic portrayal of athletes that fans are accustomed to.
Furthermore, a dialogue needs to be broached on the limits of the public display right for tattoo artists. What happens in a situation where the unwitting athlete exposes their tattoo in a haphazard photo taken by paparazzi, fans, or friends? What if it’s done in a more professional setting such as a photo-op? Must these parties acquire a license from the artist before releasing the photos to the public? Must they fear litigation if such photos are lucrative? How far may the rights of the tattoo artist encroach into the right of the athlete to have bodily autonomy? Must the athlete disavow certain areas of public conduct simply because their skin is the medium of expression for the artist? Until a solution is reached, however, the fight will continue with parties utilizing these two cases against each other in an attempt to distinguish the facts to support their arguments.
*The views expressed in this article do not represent the views of Santa Clara University.
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