Ink on Screen: The Legal Basis for Impliedly Sublicensing Tattoo Copyrights

23 Wake Forest J. Bus. & Intell. Prop. L. 175.

The sports-themed video gaming market is growing rapidly, drawing sports fans from all around the world.  Among other factors, “intense realism” plays a crucial role in determining the success of a sports video game.  A prime example of this is NBA 2K, recognized as one of the best-selling basketball video game series globally.  The series has gained popularity for its highly realistic reflection of real-world National Basketball Association (NBA) games, ranging from the unique playing styles to the physical appearances of each player.  Aided by advanced technology, NBA 2K’s avatars closely resemble their real-life counterparts, down to portraying the minute details, such as the tattoos on their bodies.  Recently, however, the prevalence of tattoos on professional athletes, including NBA players, has led to a controversial legal debate: whether an athlete’s tattoo can be digitally reproduced in video games without permission from the tattoo artist who inked the tattoo.  

The Copyright Act of 1976 (the Copyright Act) is silent on the issue of tattoo copyrights.  Before the recent case of Solid Oak Sketches, LLC v. 2K Game, Inc., no federal court had addressed the copyright implications of reproducing the likeness of an individual with tattoos through animation.  Despite its limitations, the Solid Oak Sketches decision has provided guidance on balancing competing interests between tattoo artists and tattoo bearers in digitally reproduced tattoos.  Nonetheless, a more recent case, Catherine Alexander v. Take-Two Interactive Software, has reached contrary results with nearly identical facts, potentially leading to a circuit split on the issue.

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