Move over, graffiti art—the next frontier in federal copyright litigation may be tattoo art.  A lawsuit filed in federal court last month seeks to enforce the intellectual property rights of a group of tattoo artists who created tattoos on several pro basketball stars; the complaint alleges that those rights were infringed when defendants, creators of the video game “NBA 2K16,” incorporated images of the players—including their tattoos—into the game.  See Solid Oak Sketches, LLC v. Visual Concepts LLC et al., S.D.N.Y. Docket No. 16-cv-724.

The plaintiff in the suit is an entity that says it has entered into exclusive licensing agreements with a handful of individual tattoo artists who created tattoos on various NBA stars, including LeBron James, Kobe Bryant, Eric Bledsoe, DeAndre Jordan, and Kenyon Martin.  As the holder of the exclusive rights to the works, the LLC is pursuing legal relief against the video-game defendants.

The complaint urges that the video game’s popularity and profitability is, at least in part, due its “crisp details and real graphics,” making the tattoos valuable for the defendants.  The plaintiff also emphasizes that it tried to reach a settlement with the defendants prior to the game’s release, but the defendants ultimately broke off negotiations and released the game with the tattoo images in it; such allegations are presumably aimed at bolstering the plaintiff’s position that the infringement was willful, which could impact eventual damages.  See 17 U.S.C. §504.   The plaintiff seeks both damages and injunctive relief.

The case raises a host of interesting legal questions, the threshold one being: Are tattoos copyrightable?  The complaint seems to anticipate a fight on the question, taking pains to explain that the tattoos in question constitute a “pictorial, graphic, or sculptural work,” and that they meet the federal standards for copyright protection, including originality (emphasizing the creativity that went into the tattoos) and “fixation in a tangible medium of expression” (here, the plaintiff argues, the works are permanently “fixed” on the athletes’ skin).  See 17 U.S.C. §102(a).

There have been a handful of cases that asserted copyright claims based on tattoo art.  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, but held that the artist had a strong likelihood of success on the merits of the case, opining during a hearing that there could be “no reasonable dispute” that tattoos are copyrightable.  In 2012, a tattoo artist sued a different video-game company over its in-game depiction of UFC Carlos Condit’s distinctive tattoo.  But litigation on this topic has generally ended in out-of-court settlements, so there’s a dearth of case law to guide future litigants.

It seems likely that a court would hold that tattoos as a general matter are copyrightable, as long as they are sufficiently original.  But that only raises additional questions.  For example, in the Tyson case, the movie studio defendant raised a fair use defense.  But such defenses often face tougher challenges when the alleged infringer is making an exact or near-exact copy of the tattoo, and making a hefty profit from the movie or game while doing so.

The Solid Oak Sketches case may also explore whether there is an implied license at play.  Many commentators have suggested that a tattoo artist probably gives an implied license to the person bearing the tattoo to publicly display that tattoo as they go about their lives.  Such an implied license would also likely extend to situations where a tattoo-bearer is photographed or filmed.  But the NBA 2K16 case (like the Condit case) raise the question of whether that license goes further, to cover a commercial application such as a video game animation that seeks to accurately depict the tattoo’s bearer in detail, tattoos and all.  (In this regard, the Tyson case arguably was even more of a stretch, because there, the claims focused not on any depiction of Tyson himself, but on the depiction of the same tattoo on a totally different character.)

In a larger sense, tattoo art may have something in common with graffiti art.  Both art forms often use an unconventional “canvas”: with graffiti art, the canvas is someone else’s property, and with tattoo art, the canvas is someone else’s body.  As we’ve mentioned before on this blog, there has been increasing litigation by graffiti seeking to defend their work from copyright infringement by consumer brands, a trend that might suggest either a common misperception that graffiti enjoys no copyright protection, or a practical assumption that street artists will not take steps to defend their rights.  Likewise, the contours of copyright protection over tattoo art are unclear, and some people might assume there are none—or might gamble that a tattoo artist will not, as a practical matter, take legal action.

Finally, this case also begs the related question; even if a tattoo is copyrightable and someone has infringed it, who owns the copyright?  This could, of course, be addressed through contracting; for example, 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 appears on television, in advertising, or in video games.  But in the absence of a contract, it may not be clear.  For example, one could imagine the owner of a tattoo parlor arguing that all works done by employees of the parlor are “works for hire” whose copyrights belong to the business, not the individual artists.  Another possible scenario might emerge where the tattoo’s bearer designed or helped to design the tattoo; in such a case, it might be argued that the bearer at least owns the copyright jointly with the artist.  In fact, when asked about the newly-filed Solid Oak Sketches case, NBA star LeBron James (who is not a party to the litigation) wondered aloud whether the plaintiff could own the rights to his tattoo “even if I designed it.”

Defendants are expected to respond to the complaint by mid-April; we’ll continue to monitor the lawsuit and any resulting judicial decisions on the emerging topic of tattoo art.