A new lawsuit by a tattoo artist against the makers of a popular video game series may explore some interesting questions about how U.S. copyright law applies to tattoos.
 
The plaintiff in the suit, tattoo artist James Hayden, has inked some of the biggest names in pro basketball.  His complaint, filed this week in a federal court in Ohio, focuses on tattoos he created for NBA players LeBron James, Danny Green, Tristan Thompson, and Kyrie Irving; he alleges that the defendants, 2K Games and Take-Two Interactive Software, have precisely copied his works in their digital depictions of the players, which are featured in the defendants’ successful video game franchise, NBA 2K.  He claims that the games’ “clear, detailed, and unauthorized reproductions” of his tattoo art constitute copyright infringement.  See Hayden v. 2K Games, Inc., et al., Docket No. 17-cv-02635 (N.D. Ohio).
 
He also sets forth a claim under the Visual Artists Rights Act of 1990 (VARA), 17 U.SC. § 106A, urging that the defendants have violated his VARA rights by failing to give him credit for his work, and by “distorting, mutilating and/or modifying” his works in a manner that is prejudicial to him.  The complaint also includes a state law claim for unjust enrichment.
 
Although Hayden’s complaint is making headlines now, his suit is strikingly similar to one that is already pending in federal court in New York.  Our previous post on that case contains more detail, but in short, the plaintiff in Solid Oak Sketches, LLC v. Visual Concepts LLC et al., Docket No. 16-cv-724 (S.D.N.Y.) has exclusive rights in the tattoos of several other NBA stars; they too have advanced copyright infringement claims regarding the depiction of player tattoos in these video games.  Since that case’s filing in early 2016, the defendants have won an initial skirmish by persuading the court to dismiss the complaint’s demand for statutory damages and attorneys’ fees.  The court there ruled that, because the initial alleged infringement occurred prior to registration of the copyright in the tattoos, statutory damages and legal fees were unavailable (see 17 U.S.C. § 412); the court rejected the plaintiff’s argument that each new version of the video game (which is released annually) is a separate infringement, instead explaining that “when the same defendant infringes on the same protected work in the same manner as it did prior to the work’s registration, the post-registration infringement constitutes the continuation of a series of ongoing infringements.”  This issue seems likely to come up in Hayden as well; Hayden’s complaint indicates that he may seek either his actual damages or statutory damages, and he presumably bases his request for statutory damages on the fact that he registered his copyrights in 2016, and new versions of the NBA video games have been released since then.  If the Hayden court finds the reasoning of the Solid Oak court persuasive, Hayden’s potential recovery may be limited to his actual damages, which will likely be more difficult to establish.
 
In general, the Hayden case raises many of the same questions already being examined in the Solid Oak case—and the Solid Oak court will likely rule on some of those issues sooner, given that that case is well underway, with the parties already engaged in discovery.  Most notably, the Solid Oak court is currently considering the parties’ fully-briefed motion for judgment on the pleadings.  In that motion, the defendants have argued that plaintiff’s claims are doomed on two separate bases: 1) that their use of the plaintiff’s works is so trivial as to be de minimis, and 2) that their use constitutes fair use under 17 U.S.C. § 107.
 
The defendants’ de minimis argument urges that the tattoos at issue are visible only “fleetingly” and appear quite small when a user is playing the video game, and are frequently displayed only out of focus or partially obscured as the animated players move during the game; they are not highlighted as a key part of the game.  The defendants also argue that the depiction of the tattoos is fair use, noting (among other things) that the games use the tattoos simply to accurately depict the players’ appearances, and do not usurp the market for the tattoos themselves.  The defendants also seek to point out what they see as the negative public policy implications of a recovery for plaintiff, urging that Solid Oak should not be able to “shakedown” any publication or television broadcast that makes commercial use of these players’ likenesses in content or advertisements, calling it “illogical to allow Solid Oak to seek rents each time that a player bearing one of its tattoos commercializes his likeness, or worse, appears in public, and therefore arguably ‘publicly displays’ the Tattoos under copyright law.” 
 
For its part, Solid Oak responds that the video games’ depictions of the tattoos is not transformative (an important aspect of fair use in the Second Circuit); rather, their purpose and appeal lies in the exact duplication of the entirety of the works.  The plaintiff also emphasizes that further discovery will help shed light on the fair use analysis, by providing more detail about, for example, how the tattoos look and how frequently they appear when users actually play the games.  The plaintiff further argues that the court should not rule on the de minimis question at this early stage of the case, but should instead leave that question for trial.
 
James Hayden and counsel are doubtless watching the Solid Oak proceedings closely, given that that case may yield decisions that would carry significant weight in the Hayden case.  This is particularly true given the dearth of case law about tattoo art generally.  While it seems likely that tattoos as a general matter are “fixed” artworks that should be protectable under copyright law as long as they are sufficiently original, the contours of that protection have not been fully explored by courts in light of the unique nature of the “canvas” on which tattoo artists ply their trade.  For example, does a tattoo artist give an implied license to the person bearing the tattoo to publicly display that tattoo as they go about their lives?  And if so, how far does that license extend—to appearing in public?  To being photographed or filmed for commercial purposes?  To being depicted in films or games?  (A few years ago, boxer Mike Tyson’s tattoo artist sued over the fact that Tyson’s famous face tattoo was featured on actor Ed Helms’s character in the film The Hangover 2; the judge in that case refused to issue a preliminary injunction halting the release of the movie, and indicated that he thought the tattoo artist’s case had some merit, but the case settled before any substantial case law could emerge.)
 
In the big picture, any decisions that come out of these cases will provide some much-needed judicial analysis of how copyright law applies to this unique type of art.  And of course, it’s possible this recent spate of tattoo art cases might prompt tattoo artists—and their celebrity clients—to try to reach agreement on some of these issues in advance, through contracting.  Indeed, the NFL Players Association has encouraged pro football players to obtain waivers or licenses from their tattoo artists, in an attempt to prevent claims that might arise when a player’s tattoo is visibly displayed on television, in advertising, or in video games.  We’ll continue to monitor these interesting questions as they unfold.