Solid Oak Sketches has filed copyright registrations in the tattoo designs that decorate the bodies of some of basketball's biggest stars (LeBron James, Kobe Bryant, Kenyon Martin, DeAndre Jordan, Eric Bledsoe, etc), and has sued Take-Two Software, maker of NBA 2K16 and other basketball video games, for reproducing tattoos as part of the likenesses of the players.
The suit does not state whether the player have side-deals with Take-Two to license their likenesses (it seems likely that they would, given the possibility of a publicity rights claim in California), and whether those deals make any representations about whether the players have the right to allow third parties to reproduce their likenesses, tattoos and all.
The suit was filed after Take-Two rejected an offer of $1,144,000 for a perpetual license to Solid Oak's tattoo art for its games.
For me, the most interesting question here isn't whether games require licenses to tattoos on famous peoples' bodies, but whether a person with a tattoo must consult with the artist who inked it whenever they sign a release allowing for its reproduction. On its face, there's a logic to this: tattoo designs unquestionable are creative works, and they are definitively fixed in a tangible form.
But if your tattoo artist owns your design, then you cease to have title to your own likeness -- and your own flesh. In theory, you couldn't contract with another artist to alter or cover up the design (making an unauthorized derivative work), and in the EU, having the design removed could violate the tattoo artist's moral rights (right of integrity).
The obvious parallel is to studio photographers. People who hired photographers to shoot their portraits or document their weddings have discovered, years after the fact, that no one will reproduce those photos without the studio's permission -- the worst-case scenario is when you can't get a blowup of your grandmother's wedding picture for her funeral because no one will print it out unless you figure out who owns the rights to the work of the long-dead photographer.
If tattoo artists can assert copyright over the reproduction of their work, over and above the permission of the people on whose bodies that art appears, then it's not just models and actors and politicians and athletes who won't be able to sign a release or pose for a publicity shot (or even have their feats recorded and aired on TV!) -- potentially, you could find that no one will print out grandpa's Navy photos for his 70th birthday party unless you find the tattoo artist who inked his arms and get their permission for the reproduction.
The counterargument would be that the copyright is "exhausted" when you buy the tattoo, but exhaustion doesn't generally cover reproduction. I own the book that I buy in the bookstore, but not the right to photocopy it and pass it around or write an unauthorized sequel. Perhaps it could be fair use, or "de minimis," but either of these defenses would be "fact intensive" and would not provide the surety that an agency, print shop or TV network could rely upon.
Solid Oak Sketches argues that the tattoo designs "easily satisfy" a standard for originality. The designs — including a child portrait on LeBron James' inner left forearm, a crown with butterflies on Kobe Bryant's right bicep and a script with a scroll on DeAndre Jordan's right shoulder — were created by tattoo artists Shawn Rome, Justin Wright and Tommy Ray Cornett, who according to the complaint, signed copyright license agreements with the plaintiff. As for fixation, Solid Oak Sketches argues that the designs "are imprinted permanently upon the skin of humans, clearly stable and able to be perceived for much more than a transitory duration."
'NBA 2K' Videogame Maker Sued for Copyright Infringement Over LeBron James' Tattoos
[Eriq Gardner/Hollywood Reporter]
(Image: Man with a backpiece Christian and Enlightenment tattoo, Alexander Kuzovlev, CC-BY-SA)