The April Fools installment of Cup of Joe is about tattoos. The topic is, Who Owns My Tattoos, Really? Sounds like a simple question with an easy Answer. It’s not.
This week, we are studying an important case dealing with copyright law, entertainment law, the NBA, and Lebron James; and, if you have a tattoo, maybe you. No joke.
But first a little about April First.
On April Fool’s Day in 1996, Taco Bell duped people when it announced it was buying Philadelphia’s Liberty Bell, and intended to rename it the Taco Liberty Bell. In 1998, Burger King announced a “Left-Handed Whopper,” causing clueless customers to request the fake sandwich. Google hosts an annual April Fools’ Day prank that has included everything from “telepathic search” to the ability to play Pac Man on Google Maps.
In 1982 the “Athens pollution alert” prank was played: Greece’s state-controlled National Radio Network issued a warning that pollution had reached emergency levels in Athens, and that the city would have to be evacuated, all schools closed and drivers must abandon their cars and head for open areas. The station retracted the rumor within three hours, but too late. Many took the prank seriously and fled from Athens. One man sued the radio station for $820,000, on the grounds that the prank had caused him mental distress, the director of the network handed in his resignation and the instigator of the hoax was fired.
The origin of April Fool’s Day? A festival of Ancient Greece known as The Hilaria (meaning cheerful or merry). It was celebrated in honor of Cybele, the ancient Greek Mother of Gods and included parades, masquerades, and jokes to celebrate the first day after the vernal equinox, the start of spring,
Back to Tatts
Today, at least one fifth of adults in the United States has at least one tattoo.
You love them or you hate them, Who cares? They are interesting. They are personal and sometimes intimate expressions of the people who have them. If you tell someone that you really hate their tattoo, it’s really like saying, I really hate the color of your eyes or that scar. It IS who they are, or part of them anyway.
Solid Oak Sketches v 2K Games, Inc.
Solid Oak is a company that was formed by three tattoo artists to protect the intellectual property rights of their artwork. These artists just so happened to have been commissioned by the NBA’s Lebron James, Eric Bledsoe and Kenyon Martin.
2k Games, was a video game company that had acquired the rights to use the images of those players to create their NBA 2K video games. Lebron, Eric, and Kenyon had given 2K Games permission to use their images in their game.
One day, the tatt artists see their clients on the NBA videogame. They also see what appears to be the tattoos that they inked. The tatt artists feel ripped off — there are the tattoos that they created, but where is their piece of the pie?
So their company, Solid Oak Sketches, contacts the video game company and says, hey, you are showing our tats and we want our residuals. The video company says, no way, the players sold us the rights to use their images and those tatts are part of their images. The artists, by their company, Solid Oaks, sues 2K Games.
This is the testimony from the lawsuit.
TESTIMONY OF THE VIDEOGAME COMPANY
Q: Are the tattoos created by the artists on the avatars of Lebron and the other NBA players?
A: Look, the tattoos rarely appear in the NBA 2K video games. They only are displayed when the players on whom they are inked are selected from the over 400 other NBA players that are available.
Q: Well, when the individual player does appear, can you see the tattoo?
A: The tattoos are not prominently displayed when they do appear in the games because the game camera uses a full court shot with the players’ avatars appearing as small images. So, the tattoos are not full observable because of the fluid movement of the players and other game elements blocking views of the tattoos.
Q: Are the tattoos emphasized in any way in the game?
A: No. The tattoos are not ‘spot lit’ in any way, but rather are deemphasized by the appearance of other game elements and other tattoos’ appearing on the bodies of Bledsoe, James, and Martin.
TESTIMONY OF THE ARTISTS
Q: Why are you in court today?
A: I am suing for royalties for the use of my artwork in a videogame?
Q: Can your work be viewed during the course of the videogame?
A: The user of the NBA 2K video games could pick each player bearing the tattoos, especially in light of the popularity of James as the highest rated player in the game for hours of play, and, as a result, there is continuous observability of the tattoos.
Q: Did you ever tell, for instance, Lebron, that he would have to get your permission to be able to show the tattoos that you placed on his body when he was in public?
Q: Do you think that Lebron would have commissioned you to do the tattoo if he thought you would be suing companies that he did business with?
A: You would have to ask Lebron.
TESTIMONY OF LEBRON JAMES
Q: You selected the tattoos you wanted placed on your body?
A: Yes. I gave very detailed instructions of what I wanted and where I wanted them.
Q: Did the artist ever mention anything about licensing his artwork?
Q: Did the artist ask you to sign a document that mentioned licensing of the use of his tattoos?
A: No. In the 15 years since I’ve been playing professional basketball, this case is the first time that anyone has suggested to me that I can’t license my likeness without getting the permission of the tattooists who inked my tattoos. No tattooist has ever told me I needed their permission to be shown with my tattoos, even when it was clear I was a public basketball player.
Q: What was your understanding of any limitations or conditions of the use of the tattoo that was made part of your body by the artist?
A: My understanding is that my tattoos are a part of my body and my likeness, and I have the right to have my tattoos visible when people or companies depict what I look like. I always thought that I had the right to license what I look like to other people for various merchandise, television appearances, and other types of creative works, like video games.
Q: When you licensed the rights to use your image to the videogame company, did that include the right to depict the tattoos created by the artist who is suing them here?
A: Of course. My tattoos are part of my persona and identity. If I’m not shown with my tattoos, it wouldn’t really be a depiction of me.
ARGUMENT BY THE VIDEOGAME COMPANY
Your Honor, at the very outset, there are fundamental open questions about whether a tattoo artist can even claim a copyright on a design they etched onto the body of another person.
Moreover, the amount of time that the tattoos are seen during the course of the games is so little that any infringement would be so small as to be of no consequence. Moreover, the copyright infringement claim must fail because the video company was authorized to use the Tattoos in NBA 2K in that that they had an implied license to feature the Tattoos as part of the Players’ likenesses.
An implied non-exclusive license exists where one party created a work at the other’s request and handed it over, intending that the other copy and distribute it. That is the nature of what happened here. Awarding compensation would lead to a “shakedown” whenever players appear on television. This case should be dismissed.
ARGUMENT BY THE ARTISTS
Your Honor, The Copyright Act of 1976 affords exclusive protection to artists who can establish that: Their creation is the type of work that is protectable under the Act; and, the creation is an original and creative work. Those are easy, and I don’t believe that the video company is contesting the fact that tattoos are art. The closer question is whether the artwork is affixed to a tangible medium for expression. Why can’t skin be a canvas? A living canvas, but a canvas nonetheless. The artists are entitled to their royalties.
RULING OF THE COURT
Defendants assert that Plaintiff cannot establish substantial similarity because their use of the Tattoos is de minimis. The Tattoos only appear on the players upon whom they are inked, which is just three out of over 400 available players. The undisputed factual record shows that average game play is unlikely to include the players with the Tattoos and that, even when such players are included, the display of the Tattoos is small and indistinct, appearing as rapidly moving visual features of rapidly moving figures in groups of player figures.
Furthermore, the Tattoos are not featured on any of the game’s marketing materials. When the Tattoos do appear during gameplay (because one of the Players has been selected), the Tattoos cannot be identified or observed. The Tattoos are significantly reduced in size: they are a mere 4.4% to 10.96% of the size that they appear in real life. The video clips I have reviewed show that the Tattoos are not displayed in the game with sufficient detail for the average lay observer to identify even the subject matter of the Tattoos, much less the style used in creating them.
Also, the undisputed factual record clearly supports the suggestion that the tattooists granted the NBA Players nonexclusive licenses to use the Tattoos as part of their likenesses, and did so prior to any grant of rights in the Tattoos to the videogame company.
The NBA Players each requested the creation of the Tattoos. The tattooists created the Tattoos and delivered them to the Players by inking the designs onto their skin. The tattooists intended the Players to copy and distribute the Tattoos as elements of their likenesses, each knowing that the Players were likely to appear “in public, on television, in commercials, or in other forms of media.
This case is DISMISSED in favor of the videogame company.
See you all next week.