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Ashley Homestore

Can a tattoo on human flesh be copyrighted? We’ll soon find out

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Getty / Aurich

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There's a tattoo as a design, and then there's that same tattoo after it's inked on the human body. Tattoo artists often copyright their tattoos. But does that copyright stick once the image is inked on the human body?

So far, no US court has ruled that it does, despite several lawsuits on the topic that have settled out of court or have been dropped. But barring a settlement, we might soon get our first ruling on the topic, and we have video games to thank.

Tattoo artists are suing the makers of the highly popular NBA 2K game series for the allegedly unauthorized use of their tattoos as they appear on popular players like LeBron James, Kobe Bryant, Kenyon Martin, DeAndre Jordan and others. In short, Solid Oak Sketches says that Take-Two Interactive Software is infringing its copyrighted works because the game shows the players with their real-world inked tattoos that Solid Oak Sketches has copyrighted.

In response, Take-Two says (PDF) Solid Oak Sketches is seeking "to hinder the ability to depict people as they appear in real life. Solid Oak is not an aggrieved artist—it is an opportunist."

A trial is looming, perhaps as early as December, and the game maker is seeking to have the case tossed. A decision by a New York federal judge is expected soon.

At its most basic level, the issue boils down to whether the skin on a human body is an expressive medium that qualifies as a canvas for a copyrighted work. US copyright law protects "original works of authorship fixed in any tangible medium of expression" that "is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration."

Tattoo You

Solid Oak Sketches claims the flesh constitutes the fixed medium.

"The copyrighted tattoo designs are imprinted permanently upon the skin of humans, clearly stable and able to be perceived for much more than a transitory duration," Solid Oak Sketches argues in its amended lawsuit (PDF) against Take-Two Interactive. The suit comes complete with the copyright registrations, but it does not show them.

Take-Two argues that Solid Oak Sketches posits an absurd argument and claimed as much in a legal filing:

In essence, Solid Oak argues that these public figures must seek its permission every time they appear in public, film, or photographs and that those that create new works depicting the players as they actually appear (with their Tattoos) should be enjoined and pay damages to Solid Oak.

What's more, even if the tattoos are copyrightable, Take-Two argued that it has a fair-use right to show the players with their tattoos, which are not a prominent feature of the video game.

"Solid Oak's profit-making litigation should be halted in its tracks by dismissing Solid Oak’s copyright claim as a matter of law under the de minimis use and fair use doctrines," Take-Two claims.

Fair use is a concept baked into US copyright law, and it's a defense to copyright infringement if certain elements are met. The US Copyright Office says the defense is decided on a case-by-case basis. According to the US Copyright Office:

The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

There are, however, at least four factors that judges must consider when deciding fair use: the purpose of use, the nature of the copyrighted work, the amount and substantiality of the portion taken, and the effect of the use upon the potential market.

Have a hangover

There have been plenty of lawsuits over this intellectual property issue—and, for the most part, they seem to support the tattoo artists.

In 2013, for example, video game maker THQ, which is now bankrupt, settled out-of-court a lawsuit brought by a tattoo artist named Christopher Escobedo. He sued over one of his tattoos appearing on UFC star Carlos Condit's rib cage. The tattoo was disappeared from the game.

With Madden NFL 15, Electronic Arts reintroduced players' real tattoos after the NFL Players Association advised its players to get permission from their tattoo artists so that their tattoos could be reproduced in video games.

Perhaps the most famous case involved the tattoo inked by Victor Whitmill on Mike Tyson's face. Whitmill sued Warner Brothers in a bid to block the tattoo from appearing on a character played by Ed Helms in the movie Hangover Part II. Whitmill had sought a court order to prevent the movie from showing in 2011. The film went on as planned, and the parties settled out of court.

Before the case was settled (but during an open-court session), US District Judge Catherine Perry of Missouri said "Of course tattoos can be copyrighted. I don't think there is any reasonable dispute about that."

But that did not constitute an official court ruling.

“Involuntary servitude”

That said, perhaps the most well-known legal scholar on the topic, David Nimmer, doesn't think a tattoo rendered on the human body can be copyrighted. Nimmer on Copyright is perhaps the nation's most cited legal treatise on copyright. He even submitted a declaration in the Hangover case. But his opinion has changed over time. In 2000, the treatise said he "tacitly assumed that a tattoo could 'presumably qualify as a work of graphic art, regardless of the medium in which it is designed to be affixed' such as human flesh."

But Nimmer changed his position, arguing (PDF) that if tattoos were subject to copyright, then the rights holder could sue somebody to block it from being removed.

The tattoo qualifies as an original "work of visual art" that may gain "recognized stature," with the result that a court may enjoin its destruction. See 17 U.S.C. § 106A(a)(3)(B). After a court invokes that provision to bar him from removing his tattoo, Mr. Tyson literally may not show his own face to the world; that is, he will be required to keep Mr. Whitmill's handiwork spread across his face, regardless of his own desires. Copyright law thereby becomes the instrument to impose, almost literally, a badge of involuntary servitude, akin to the mark with which ranchers brand the cattle they own.

Plenty of ink has been spilt on whether tattoos can be copyrighted—and all of that ink is copyrighted by default. But whether ink on human flesh is subject to copyright protection is another story—and a new chapter is about to be written.

US District Judge Laura Taylor Swain will soon decide whether she sides with Solid Oak Sketches or Take-Two Interactive's motion to dismiss the case. The briefing schedule ends October 2.

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