If there is one thing that really gets under the skin of tattoo artists, it is the unauthorized use of their designs. The makers of the NBA 2K16 video game were sued for copyright infringement for not having permission from the tattoo artists to reproduce LeBron Jame’s and Kobe Bryant’s tattoos but the lawsuit was dismissed.

While you might have a tattoo for life, you do not necessarily own it. Copyright protection is given to a work when it is fixed in a medium. That medium can be paper, film, or even the human skin. The general rule is that the creator of the work is the owner of the copyright to it. Therefore, if your artist created the design and without an agreement in writing, they are the owner to the design of your tattoo.

Here, the plaintiff has obtained a license to enforce the copyright rights of several tattoo artists.  The tattoos in question are the following:

*LeBron James: child portrait on inner left forearm and three others
*Kobe Bryant: crown with butterflies on right bicep (seen to the right)
*Kenyon Martin: wizard of left shoulder
*DeAndre Jordan: script with a scroll on right shoulder
*Eric Bledsoe: basketball with stars and script

On September 29, 2015, 2K Games released its annual NBA basketball video game and within the first week it sold 4 million copies. The game features the likeness of NBA players including their tattoos. According to the Complaint, Take-Two (developer of the NBA 2K games) without a license, reproduced the copyrighted images of the players’ tattoos in its game. Despite being warned of the conduct, the company did so anyway. Yesterday, plaintiff sued the three companies behind the game for copyright infringement.

Initially, plaintiff demanded $819,500 plus a one time license fee of $1.1 million for the perpetual use of the these eight tattoos. These discussion happened in July, before the release of the game, but defendant went ahead and used the tattoos anyway without having an agreement in place. The parties were unable to reach a settlement so the issue was decided by a judge.

On Thursday, defendants prevailed on their motion for summary judgment, with the court holding that copyright infringement would not be found by a reasonable trier of fact, due to the use being de minimis and there was no substantial similarity to the original tattoos.

The designs in question only appear on the original players that were tattooed (constituting 3 out of a whopping 400 total players featured in the game), and the designs aren’t featured on any of the marketing materials. The court held that the tattoos were too small, out of focus, and mostly comprised of dark shading – thereby making them too difficult to identify during gameplay or otherwise.

There were also licensing disputes involved with this case, regarding whether Defendants had proper rights to use the tattoos to portray the players’ likenesses. Looking to the rationale of other courts within the circuit, the court held that the tattoos granted players non-exclusive licenses to use them for their likenesses, prior to any rights that were granted to the plaintiffs as part of their agreements. The tattoo artists intended for the players to copy and use the tattoos in their likenesses, knowing they would regularly appear in the media and in advertising. Finding this implied license, the court stated that players gave the NBA the right to license their likenesses, which transfers over to the Defendants and their agreements.

The court further found that defendants would most likely prevail on a fair use defense. On the first factor, purpose and character of the use, the court found the use of displaying the tattoos to accurately depict the players as transformative; where the original purpose was to provide the players with a way to artistically express themselves. Also, the tattoo’s expressive value was minimized due to the distorted and reduced sizing within the game – making them barely recognizable.

On the second factor, nature of the copyrighted work, the court also found in favor of the defendants. The tattoos were previously published by being originally inked on the skin, the designs were considered more factual than expressive because they were meant to be replicas or exact representations of references when created. There was no evidence that the tattoos were considered creative or expressive.

On the third factor, amount and substantiality of the use, defendants also were found in favor. Although the tattoos were copied in their entirety, it was necessary to properly resemble the persons they were affixed to in the game to create a realistic experience. It wouldn’t have made any sense to copy only a portion of the design if the game-makers were going for the players’ true likenesses. Moreover, due to the poor visual quality of the rendered designs in-game, the lack of recognizability favored the defendants.

Finally, on the fourth factor, effect on the market value of the original work, the court held that no feasible economic harm could be found from the use of copying these tattoos. The tattoos were found to be transformative, so they cannot serve as legitimate substitutes for the original designs. Purchasers of the tattoo designs aren’t likely to choose these specific renderings over the original versions. It should also be mentioned that no evidence was found of a reasonable market being likely to develop for licensing tattoos in video games.

This case provides a lot of insight as to how the legal world of intellectual property sees tattooing as a form of artistic expression. It will be interesting to see how other cases will move forward regarding the rights of tattoo copyright owners and the implied rights given to the individuals who wear those tattoos permanently.

Thanks to intern, Shelby Shilatz-Lewis, to contributing to this article.