When LeBron James and two other basketball titans got tattoos, it never occurred to them that the artists who inked them would stake a claim to the images on their bodies.
But that’s what happened when Solid Oak Sketches sued the makers of NBA 2K16 in New York Southern District Court, alleging the basketball game included reproductions of several tattoo designs that are among its copyrighted intellectual property.
That case came to a happy ending for defendants 2K Games, Visual Concepts and Take Two Interactive Software when U.S. District Judge Laura Taylor Swain granted the motion for summary judgment after finding the tattoos of LeBron James, Eric Bledsoe and Kenyon Martin aren’t featured in any marketing materials and can’t be identified or observed during gameplay.
“At no point during the video clips are the Tattoos discernible to the viewer,” wrote Judge Swain in her March 26 memorandum and opinion. “These videos demonstrate that the Players’ tattoos, including the tattoos at issue, appear entirely out-of-focus. The Tattoos are further obscured by the Players’ quick and erratic movements up and down the basketball court.”
The court ruled that although Solid Oak Sketches holds an exclusive license to each of the tattoos, the company, formed by a trio of tattoo artists commissioned by the NBA players, doesn’t hold any publicity or trademark rights to the players’ likenesses.
“The decision sends a strong signal to tattoo artists, or companies that come along and acquire tattoos from artists that it’s not a smart business model to pursue claims against video makers and other entities that recreate these images,” said Aaron Perzanowski, professor of copyright law at Case Western Reserve University.
The defendants had paid a licensing fee to the NBA Players Association collectively rather than to individual players, according to Mr. Perzanowski, who has followed the case.
“LeBron James was deposed and his attitude, which is consistent with other clients, is that he controls his body after the tattoo is put on it,” Mr. Perzanowski told PacerMonitor News.
“He was in support of the defendants and expressed shock and surprise that he would need permission from a third-party company before he could be included in a video game or any other depiction.”
In testimony to the court, Mr. James said in the 15 years he’d been playing professional basketball, no one had ever suggested that he could not license his likeness without securing the permission of the artists who inked his tattoos.
“My understanding is that my tattoos are a part of my body and my likeness, and I have the right to have my tattoos visible when people or companies depict what I look like,” he stated. “My tattoos are part of my persona and identity. If I’m not shown with my tattoos, it wouldn’t really be a depiction of me.”
A judge has yet to firmly declare that tattoo designs are copyrightable. In previous litigation, a tattoo artist named S. Victor Whitmill once sued Warner Bros. Entertainment in Missouri Eastern District Court over the Hollywood movie “Hangover 2” for a reproduction of boxer Mike Tyson’s famous face tattoo.
“The Movie features a virtually exact reproduction of the Original Tattoo, which appears on the upper left side of the Stu Price character’s face, played by actor Ed Helms,” wrote Mr. Whitmill’s attorney Geoffrey G. Gerber in his April 2011 complaint. “The Pirated Tattoo is prominently featured in the marketing and promotional materials for the Movie as demonstrated by a current movie poster.”
The parties settled in June 2011.
“The fact that the tattoo was reproduced on someone else’s body other than Mike Tyson who was not the original client makes a difference,” Mr. Perzanowski said. “Because it was the tattoo artist himself who sued and not a third party, the court may have been more sympathetic.”
