Whilst tattoo sketches are protected by copyright, what rights are created when the design moves from paper to skin, and does human flesh qualify as a canvas for a copyrighted work? Recent copyright proceedings in the USA have had to address these issues, particularised in allegations made by the plaintiff, Solid Oak Sketches against Take Two Software.
Take Two Software is the maker of the NBA 2K video game and reproduces highly detailed likeness of players like Lebron James, Eric Bledsoe and Keyton Martin, including the players’ tattoos as they appear in real life.
Solid Oak Sketches claims that Take Two Software is infringing their copyright in the tattoo designs by reproducing the tattoos on the game’s avatars. They allege that the tattoos were tailor-made for the individual players and the design should not be used for commercial and/or gaming purposes without a license.
In short, Solid Oak Sketches has argued that:
- the tattoos are ‘pictorial, graphic and sculptural works’, hence protectable under US copyright law;
- the tattoos are fixed in a ‘tangible medium of expression’ (i.e. they are imprinted permanently upon the human skin), hence satisfying the definition of a work protectable under US copyright law; and
- tattoos satisfy the ‘minimal degree of creativity’ requirement for a work of art to be covered by copyright protection.
A major challenge faced by Solid Oak Sketches is that there is little to no precedent in US case law supporting its claim as individuals in similar situations have historically preferred to settle the issue out of court.
Take Two Software has responded, stating that the plaintiff’s argument would force all tattooed basketball players to seek permission from Solid Oak Sketches for every public appearance. They also consider the circumstance where all other content creators (like video gamers, movie producers, YouTube vloggers) depicting the players as they actually appear should jointly pay damages to Solid Oak Sketches if they fail to obtain their prior consent.
Take Two Software seeks to rely on the US-exclusive defence of ‘fair use’, arguing that:
- it is using the tattoos for a different purpose other than that for which they were originally created. Players went under the needle as means of self-expression, but Take Two Software uses the tattoos to replicate how the players actually look in real life;
- tattoos are used by Take Two Software for an accurate depiction of the world; and
- Take Two Software’s use is reasonable, because the primary purpose of the use of the tattoo designs is the accurate depiction of real life.
Take Two Software can also argue the ‘de minimis’ doctrine, stating that copying the tattoo designs onto virtual basketball players amounts to ‘trivial copying’, which does not constitute actionable infringement of a copyright protected work.