It seems obvious to say that if ink is on your body, it’s yours. However, tattoo ownership is a tricky subject. In 2016, tattoo copyright law was brought to light because of a lawsuit against NBA 2K, the basketball game by Take Two Interactive Software. The case? Solid Oak Sketches was suing the Take Two because the game showed Lebron James’ avatar with his tattoos.
Vice caught up with Jeremy S. Goldman, a copyright, privacy and entertainment lawyer based in L.A., to better understand the issues and who owns tattoo art after it has been inked.
Here are the highlights of the conversation:
• Copyright – it exists when there’s an original work of art in its original medium. Copyright separates the right to the art itself from the physical output of an artist. It protects the right to commercialize the art by anyone who isn’t the artist.
• Goldman believes that tattoo artists who ink anyone’s skin are granted a “broad implied license” – meaning, the person will obviously appear in public with the tattoo, but the question arises when the tattoo appears outside of the person’s body, as is the case with NBA 2K.
• NBA 2K case: Solid Oak Sketches, a single individual went to tattoo artists who inked athletes and got them to sign over the rights to him. Now, he is suing Take Two Interactive Software for the unlicensed use of their body art in their avatars.
• Take Two is trying to dismiss the case on two grounds – 1. It’s such a small part of the game (legally referred to as de minimis) and 2. It’s fair use
It’s still a murky and unclear situation. The suggestion to athletes and those in the spotlight is to have the tattoo artist to sign a paper waiving rights to the tattoo to avoid this kind of mess. In fact, that’s what the NFL’s Players Association advised its players when EA was sued for having Ricky Williams on the cover of multiple games with his tattoos.
In the digital age and with the rise of personal branding as a business, the laws are being more clearly distinguished as time passes.