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Tattoos and IP: Who owns the ink in a person’s skin?

08-08-2016

News that video game producer 2K Sports has secured a partial victory in the dispute over who owns Kobe Bryant and other NBA players’ tattoos has once again brought the world’s attention to the thorny issue of tattoo design and copyright ownership.

The case was brought by tattoo artist shop Solid Oak Sketches, which alleged that its designs - which can be seen on NBA stars such as Kobe Bryant and LeBron James - were being shown in 2K Sports’ basketball video game series without its permission, thereby breaching copyright law. The designs include the butterflies on Bryant’s right arm, the words ‘Hold my own’ on James’s left bicep, and a number of designs on the bodies of Eric Bledsoe, DeAndre Jordan and Kenyon Martin.

Solid Oak was seeking US$150,000 per individual copyright infringement, a penalty that could potentially reach to the billions of dollars. This claim for statutory damages was dismissed by a New York court last week; however, the District Judge did rule that Solid Oak could still pursue 2K Sports for actual damages resulting from its use of the tattoo designs.

Can you own the IP to artwork on another person’s skin?
As set out in our earlier in-depth article ‘Art and copyright: The IP behind the tattoo craze’, IP rights in tattoo artwork will generally belong to the artist that created the tattoo (with the exception of tribal tattoos based on an indigenous right or designs transferred to another party via assignment). That this is is an often overlooked fact is perhaps not surprising: a tattoo inked into a sports star or celebrity will inevitably become so associated with the body it adorns that few consider a tattooist’s IP rights when using, copying or taking inspiration from their designs.

But, while such oversight may traditionally have been ignored in the once anti-establishment world of tattoo art, today, this kind of infringement is sufficiently high-profile to grab the attention of the tattoo artist and lead to legal action, as the Solid Oak case shows.

Other high profile disputes in this field include that between tattooist S Victor Whitmill and the studio behind the movie The Hangover Part II over the tribal ink-job on the face of a main character in the film (a replica of the design made famous on the face of former heavyweight champion Mike Tyson).

Other video game producers have learned from their earlier mistakes; after resolving a dispute over ownership to the rights to the tattoos of NFL star Ricky Williams in 2004, EA Sports now requires any athlete appearing in its games to obtain the tattoo artists’ permission to feature their body ink in their digital likeness.

To find out more about the evolving field of tattoo ownership, read our in-depth article ‘Art and copyright: The IP behind the tattoo craze’.